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            Full text of "<a href="/details/cu31924022836245">Bouvier's law dictionary and concise encyclopedia</a>"
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(IJornfll Slam ^rlyonl Slibtary 



Cornell University Library 
KF 156.B78 1914 
V.3 
Bouvier's law dictionary and concise enc 




3 1924 022 836 245 




Cornell University 
Library 



% 



The original of tiiis book is in 
the Cornell University Library. 

There are no known copyright restrictions in 
the United States on the use of the text. 



http://www.archive.org/details/cu31924022836245 



BOUVIER'S LAW DICTIONARY 

A CONCISE 

ENCYCLOPEDIA OF THE LAW 

.RAWLE'S REVISION 



BOUVIER'S 



LAW DICTIONARY 



AND 



CONCISE^ ENCVCLOPEDIA 



BY JOHN BOUVIER 



Ignoratis iermims, ignoratur et ars. — Co. Lirr. 2a 

Je sais qui ehaqui scU^ice et chaque art a ses termes propres, inconnus 
au commun des hommes. — Fleury 



HfRD REVISION 

f ( nj g (BEING THE EIGHTH EDITION) 

BY FRANCIS RAWLE 

OF THE PHILADELPHIA BAR 



VOLUME III 



"•mf^m KANSAS CITY, MO. 

IPWERNON LAW BOOK COMPANY 

ST. PAUL, MINN. 

WEST PUBLISHING COMPANY 
1914 



' /J ^^i&gt;f 



Entered according to Act of Congress, in the year 1839, by 

.lOI^J BOUVIER, 

in the Clerk's Office of the District Conrt of the United States for the Eastern District of 

Ifeinsylvania. 



Etatered according' to Act of Congress, in the year 1843, by 

JOHN BOUVIER, 

in the Clerk's Office of the District Court of the United States for the Eastern District of 

Pennsylvania! 



^ 

Entered according to Act of Congress, in the year 1848, by 

JOHN BOUVIBK, 

in the Clerk's Office of the District Court of the Unite^ States for tte Eastern District of 

Pennsylvania. ', ^ 

Entered according to Act of Congress, ia the. year l'i?2, by 

ELIZA BOUVIER and ROBERT B. PEtBR^m ^stees, 

in the Clerk's Office of the District Court of the United States fin- the Eastern District of 

Pennsylvania. i ; 



Entered according to Act of Congress, in the year "'1867, by 

ELIZA BOUVIER and ROBERT E. PBTBH^ON,\.Ti^tees, 

in the Clerk's Office of the District Court of the United States fofl the|Eastern District of 

Pennsylvania. ' i ' | 

Entered according to Act of Congress, in tlefyear 1883, i by 

ROBERT E. PETERSON,! I 
in the Office of the Librarian of Congress at Washiogton. 



Copyright, 1897, by R. Evans Petebson, Trustei. 



Copyright, 1914, by Louis D. Peteesoi^, Trustet 



(3 Bouv.)t 



f-Te 

LAW DICTIO&gt;11ll^Y 



A 




CONCISE ENCYCLOPEDIA 



N 



N. C. D. Nemine contra dicente. No one 
dissenting. 

N. E. I. See Non Est Inventus. 

N. L. See Non Liquet. 

N. 0. V. See NoN Obstante Veeedicto. 

NAAM. See Namium.' 

NABOB. Originally the governor of a 
province under the Mogul government of 
Hindostan, whence it became a mere title of 
any man of high rank, upon whom it was 
conferred without any office being attached. 
Wils. Gloss; Whart. 

NAIF. See Nbip. 

NAIL. A measure of length, equal to two 
inches and a quarter. See Measube. 

NAIL COUSINS. See Sib-ship. 

NAKED. This word is used in a meta- 
phqrical sense to denote that a thing is not 
complete, and for want of some quality it 
is either without power or it possesses a 
limited iwwer. A naked contract is one made 
without consideration, and for that reason 
it Is void. See Consideration. A naked au- 
thority Is one given without any right in the 
agent, and wholly for the benefit of the prin- 
cipal. 2 Bouvier, Inst. n. 1302. See Nudum 
Pactum. 

NAKED TRUST. A dry or passive trust; 
one which requires no action on the part of 
the trustee, beyond turning over money or 
property to the cestui que trust. See Teust. 

NAKED TRUSTEE. See Teustee. 

NAM. Distress; seizure. 

See. Namium. ' 

NAM AT I ON. The act of distraining or 
taking a distress. Cowell. See Namium. 

NAME. One or more words used to dis- 
tinguish a particular individual: as Soc- 
rates, Benjamin Franklin. 

Names are Christian, as Benjamin, or sur- 
names, as Franklin. One Christian name 
only is recognized in law ; 1 Ld. Raym. 562 ; 
Bacon, Abr. Misnomer (A) ; Boyd v. State, 7 



Anc. Inst. Eng. 



Cold. (Tenn.) 69; Franklin v. Talmadge, 5 
Johns. (N. Y.) 84; though two or more names 
usually kept separate, as John and Peter, 
may undoubtedly be compounded, so as to 
form in contemplation of law but one; 5 
Term 195. The cases on various points are 
conflicting, but some of them vrill be given, 
without attempt to harmonize them. An 
initial is no part of a name. See Initial. 
Nor is the title junior (g. v.) ; Teague v. 
State, 144 Ala. 42, 40 South. 312; Hunt v. 
Searcy, 167 Mo. 158, 67 S. W. 206 ; nor "Sec- 
ond," nor the numeral II ; Cobb v. Lucas, 15 
Pick. (Mass.) 7; nor the prefix Mrs.; State 
v. Richards, 42 N. J. L. 69; Schmidt v. 
Thomas, 33 111. App. 109. But it has been 
held that where Lewis R. instead of Levrts 
S. was inserted in a writ of sd. fa. to revive 
a judgment, the writ was not notice to pur- 
chaser for value in a chain of title, in which 
Lewis S. was the actual name; Massey v. 
Noon, 1 Pa. Super. Ct 198. 

It was early held in England that if fa- 
ther and son have the same name it refers 
prima facie to the father ; 1 Salk. 7 ; 1 Stark. 
106 ; Hob. 330 A. ; and some early cases held 
that, If it was intended to indicate the son, 
Jr. must be added ; State v. Vittum, 9 N. H. 
522; and where father and son of the same 
name resided in the same town, it was held 
that a writ against the son would abate if 
Jr. were omitted; Zuill v. Bradley, Quincy 
(Mass.) 6. 

The name of a corporation is said to be 
"the very being of the constitution"; Bac. 
Abr. Corp. (C) ; Smith v. Plank-Road Co., 
30 Ala. 664; and in general a corporation 
must contract and sue and be sued In its cor- 
porate name; Porter v. Nekervis, 4 Rand. 
(Va.) 359. 

In the name of a corporation, which fre- 
quently consists of several descriptive words, 
the transposition, omission, or alteration of 
some of them may make no essential differ- 
ence in the sense; Newport M. Mfg. Co. v. 
Starbird, 10 N. H. 124, 34 Am. Dec. 145; 
1 B. &amp; Aid. 699 ; Medway O. M. v. Adams, 10 
Mass. 360; if there is no possibility of mis- 



Bouv. 



(2285) 



NAME 



2286 



NAME 



taking the identity of the corporation; Me- 
chanics' &amp; T. Bk. V. Prescott, 12 La. 444. See 
State V. Mfg. Co., 20 Me. 41, 37 Am. Dec. 38 ; 
Com. V. Demuth, 12 S. &amp; R. (Pa.) 389. 

A corporation, like an indiviTdual, may 
take a name by reputation; Soc. for Propa- 
gating the Gospel v. Young, 2 N. H. 310; 
Medway C. M. v. Adams, 10 Mass. 360; or 
may acquire it by usage ; it is not indispensa- 
ble that the name should be given by the 
charter; Smith v. Plank-Road Co., 30 Ala. 
664; see Falconer v. Campbell, 2 McLean, 
195, Fed. Gas. No. 4,620 ; and after its name 
has been changed, it may continue under the 
old name and thus, by usage, regain the lat- 
ter and sue thereunder; Alexander v. Ber- 
ney, 28 N. J. Bq. 90. 

Where parties transacted business and 
made a contract as the "Tow Boat Compa- 
ny," there being no corporation of that name, 
it was held that suit would lie in the ilames 
of the parties; The Nimrod, 141 Fed. 215. 

The Change of name of a private corpora- 
tion is not material, but is mere business 
management, and does not require the Unani- 
mous consent of stockholders; Thomas &amp; B. 
Co. V. Thomas, 165 Fed. 29, 91 C. C. A. 67. 
The omission of part of the corporate name in 
signing a mortgage and bond does not ren- 
der them invalid, where proof is clear that 
they were in fact duly authorized and in- 
tended to be obligations of the corpdra:fion ; 
In re Goldville Mfg. Co., 118 Fed. 892. Where 
"Company" is not part of a corporate name,, 
and it is sued with the addition of "Com- 
pany," it may be amended; Rosenbluth v. 
Reis Circuit Co., 36 Pa. Co.. Cf. R. 332. 

But it is held that a change of corporate 
name requires statutory authority, whether 
done directly or by user, though it may ac- 
quire a name by user when not given at In- 
corporation; Sykes v. People, 132 111. 32, 23 
N. E. 391 ; such change does not in any way 
affect its identity or rights ; and an action 
against it by its former name cannot be de- 
feated by showing the change, if the mem- 
bership remains the same; Welfley v. Mfg. 
Co., 83 Va. 768, 3 S. E. 376. When a corpora- 
tion is sued, a mistake in the name, in words 
and syllables, but not in substance, will not 
be regarded, unless pleaded in abatement;, 
but if the mistake be in substance, the suit 
cannot be regarded as against the corpora- 
tion; 1 B. &amp; P. 39. Where the name in a 
contract in suit differed from the name in 
the declaration, but the identity was appar- 
ent, the variance was held not to constitute 
a defence; Dodge v. Barnes, 31- Me. 290. 
There is said to be a distinction between a 
misnomer which incorrectly names, but cor- 
, rectly describes; a corporation and the state- 
ment in the pleading of an entirely different 
party; the former is curable by amendment, 
the latter Is not; Smith v. Plank-Road Co., 
30 Ala. 650. A grant to a corporation by the 
wrong name is good if the corporation really 



intended be apparent; 2 Kent 292; 1 Dill. 
Mun. Corp. § 179; so of a contract; Berks 
V. Myers, 6 S. &amp; R. (Pa.) 12, 9 Am. Dec. 402 ; 
and of a gift by will ; 11 Eng. L. &amp; Eq. 191. 
If a eorporation conveys by the wrong name 
it cannot defeat its grant,, if it has received 
the consideration; Sykes v. People, 132 111. 
32, 23 N. E. 391. 

As to the protection of a corporation in 
the use of its corporate name, sefe Moraw. 
Prlv. Corp. § 355 ; TbaBe-Mabk. 

See Good- Will ; Paetneeship ; Paetnees ; 

MlSNOMEB. 

The real name of a party to be arrested 
must be inserted in the warrant, if known; 
g- East 828; Gumsey v. Lovell, 9 Wend. (N. 
Y. ) 320 : if unknown, some description must 
be given; 1 Chitty, Cr. Law 39; with the rea- 
son for the omission; 1 Mood. &amp; M. 281. 

Proof may be given that the maker of an 
instrument habitually applied a nickname 
or peculiar designai-ioa used therein to a 
particular person or thing; Eoggs v. Taylor, 
26 Ohio St. 604. As to mistakes in devises, 
see Legacy. As to ffie use of names having 
the same sound, see Idem Sonans. As to 
the effect of using a name having the same 
derivation, see 2 Rolle, Abr. 135; Gordon v. 
Holiday, 1 Wash. C. C. 285, Fed. Gas. No. 
S\S10: At common law one could change his 
name ; Linton v. Bank, 10 Fed. 894 ; Com. v. 
Trainer, 123 Mass. 415; 3 B. &amp; Aid. 544; 
Smith V. Casualty Co., 197 N. Y. 420, 90 N. B. 
947, 26 L. K. A. (N. S.) 1167, 18 Ann. Ca^. 
701 (where the origin and evolution of 
names is discussed at length) ; but not, per- 
haps; where one has obtained a name by 
judicial decree under a statute; id. Stat- 
utes in many states provide for a change of 
name. Jekyll,. M. R., in 3 P. Wms* 65, de- 
clared that any one might take upon him- 
self as many surnames as he chose; but 
this judgment was reversed in 4 Bro. P. C. 
194 (H. of L.), where it was said that "the 
individual ought to have -inherited or ob- 
tained an authority for using" a name. 
Fox-Davies and Carlyon-Britton on Names 
takes the view that no one can create a 
name for himself or change his name, but 
the power to do so is a prerogative of the 
crown. 

The middle name is unimportant and the 
omission of it or its initial is of no legal ef- 
fect; Cox V. Dnrham, 128 Fed. 870, 63 C. 
C. A. 338; Roosevelt v. Gardinier, 2 Cow. 
(N. Y.) 463; Bletch v. Johnson, 40 111. 116; 
contra, Parker v. Parker, 146 Mass. 320; if 
the middle initial is given, it need not be 
correct even in criminal cases; People v. 
Lockwood, 6 Cal. 205; Franklin v. Talmadge, 
5 Johns. (N. Y.) 84; Cox v. Durham, 128 
Fed. 870, 63 C. C. A. 338; contra. King v. 
Clark, 7 Mo. 269; Cleveland, C, C. &amp; St. L. 
Ry. Co. V. Pierce, 34 Ind. App. 188, 72 N. E. 
604; the initial letter of the first name Is 
sufficient in a warrant; Cox v. Durham 128 
Fed. 870, 63 O. C. A. 338. 



NAME 



2287 



NAME 



The occasional use of a single letter as a 
name developed a strange contradiction. It 
was held that a vowel, being complete in it- 
self, was sufficient, and a consonant, being 
part of a complete sound, was not; 6 C. B. 
577 ; 7 0. B. 980. The supposed distinction 
was put an end to in 15 Jur. 657, by Lord 
Campbell. In this country the question has 
been raised and two initials were held to be 
a valid Christian name; Tweedy v. Jarvia, 
27 Conn. 42; this has also been held in South 
Carolina; City Council v. King, 4 McCord 
(S. 0.) 487; but the contrary was held in 
that state in one case; Norris v. ©raves, 4 
Strob. (S. O.) 32. 

A mistake in the middle initial does not 
invalidate a process under which title to 
land is taken ; Johnson v. Day, 2 N. D. 295 ; 
J. H. Burtis is taken as if J. Burtis, and is 
sufficient where the title was in J. F. Burtis ; 
• Illinois C. R. Co. v. HasenwinlUe, 232 111. 
224, 83 N. E. 815, 15 L. R. A. (N. S.) 129. 
A mortgage executed by Henry M. Ward as 
Henry N. Ward was held good where there 
was only one Henry Ward in the county ; 
Fincher v. Hanegan, 59 Ark. 151, 26 S. W. 
821, 24 L. R. A. 543 ; but where there is a 
misnomer amounting to a substantial de- 
fect, the proceedings will give no jurisdic- 
tion; thus O. P. Buchanan in a notice in- 
tended for Petter 0. Buchanan was held 
bad; Buchanan v. Edmisten, 1 Neb. (Unof.) 
429, 95 N. W. 620; as also was P. T. B. 
Hopkins in a notice intended for T. P. B. 
Hopkins; Fanning v. Krapfl, 61 la. 417, 14 
N. W. 727, 16 N. W. 293 ; and a publication 
of a summons to George H. Leslie confers 
no jurisdiction over George W. Leslie; D'Au- 
tremont v. Iron Co., 104 Minn. 165, 116 N. 
W. 357, 17 L. R. A. (N. S.) 236, 124 Am. St. 
Rep. 615, 15 Ann. Cas. 114. 

It is held that since the use of Initials In- 
stead of a given name before a surname has 
become a common practice, these initials 
must all be given and correctly given in 
court proceedings ; Carney v. Bigham, 51 
Wash. 452, 99 Pac. 21, 19 L. R. A. (N. S.) 
905, where a certificate of tax delinquency 
reciting the name of the person assessed as 
J. G. Carney instead of J. E. Carney as it 
appeared on the assessment rolls was held 
insufficient to sustain a foreclosure. 

Parties cannot in legal proceedings be des- 
ignated by mere description ; the words "and 
wife" following defendant's name do not 
make the wife a party; Sossman v. Price, 
57 Ala. 204; nor "Mr. and Mrs." followed 
by the husband's initials and surname ; 
KaufCman v. Sherbondy, 22 Pa. Dist. R. 114. 

A mistake in the Christian name of a de- 
fendant duly served gives the court Jurisdic- 
tion, if at the time of service he was duly 
apprised that he was the person intended to 
be named therein, where the statutes pro- 
vide for correcting such mistakes; Stuy- 
vesant v. Weil, 167 N. Y. 421', 60 N. E. 738, 
53 L. R. A. 562. Misspelling is immaterial 



either of the Christian; Harrell v. Neef, 80 
Kan. 348, 102 Pac. 838; or the surname; 
Phillips V. Palmer, 56 Tex. Civ. App. 91, 120 
S. W. 911; particularly If they are idem 
aonana. 

The omission of the Christian name by 
either plaintiff or defendant In legal pro- 
cess prevents the court from acquiring ju- 
risdiction, there being no other description 
or identification and no appearance or waiv- 
er of process ; Whitney v. Masemore, 75 
Kan. 522, 89 Pac. 914, 11 L. R. A. (N. S.) 
676, 121 Am. St. Rep. 442 ; Boynton v. Cham- 
berlain, 38 Tex. 604; Thompson v. McOorkle, 
186 Ind. 484, 34 N. B. 813, 36 N. E. 211, 4.3 
Am. St. Rep. 334; but where the notice by 
publication was directed to Etta R. Fisher 

and : — Fisher, her husband, it was held 

a sufficient description to indicate his iden- 
tity; Cruzen v. Stephens, 123 Mo. 337, 27 
S. W. 557, 45 Am. St. Rep. 549. 

Nicknames are not sufficient in process or 
pleading. They are names given in con- 
tempt, derision or sportive familiarity; 
Ohlmann v. Sawmill Co., 222 Mo. 62, 120 S. 
W. 115.5, 28 L. R. A. (N. S.) 432, 133 Am. 
St. Rep. 506, where process to recover taxes 
against land owned by Michael Ohlman, 
which described him as Mike Ohlman was 
held insufficient to give jurisdiction, Mike 
being held not a universally recognized ab- 
breviation of Michael, but a mere diminutive 
or nickname. For a discussion of the origin 
of nicknames and their development in many 
cases Into surnames, see Fox-Davies and 
Carlyon-Britton on Names, 20, 24, 25. 

Identity of name raises the presumption 
of Identity of person, where the name Is an 
unusual one and when there is some similar- 
ity of business residence or the like, but not 
where the name is a common one and a num- 
ber of persons bearing it live in the same 
■place ; Laws. Pres. Ev. 307 ; State v. Smith, 
129 la. 709, 106 N. W. 187, 4 L. R. A. (N. S.) 
539, 6 Ann. Cas. 1023. This presumption 
may be overcome by circumstances in the 
particular case ; Garrett v. State, 76 Ala. 18, 
where the qualifications of the rule are dis- 
cussed; where the similarity of circum- 
stances is not present the presumption fails; 
People V. Cline, 44 Mich. 290, 6 N. W. 671. 
And in many cases the identity of name has 
been treated as prima facie evidence of 
identity of person without reference to qual- 
ifications; People V. Rolfe, 61 Cal. 540; 
Bayha v. Mumford, 58 Kan. 445, 49 Pac. 601 ; 
State V. McGuIre, 87 Mo. 642; State v. Kel- 
soe, 76 Mo. 505 ; and in such case the Iden- 
tity of the person is a question for the jury ; 
State V. Loser, 132 la. 419, 104 N. W. 337 ; 
and while it is not to be assumed as a mat- 
ter of law ; Shuler v. State, 125 Ga. 778, 54 
S. E. 689; State v. Lashus, 79 Me. 504, 11 
Atl. 180; yet it is not error to charge the 
jury that identity is presumed In the ab- 
sence of evidence to the contrary ; People v. 
Riley, 75 Cal. 98, 16 Pac. 544. 



NAME 



2288 



NAME 



A person not having a fraudulent or crim- 
inal purpose in so doing may enter into a 
contract by any name he may choose to as- 
sume; Scanlan v. Grimmer, 71 Minn. 351, 
74 N. W. 147, 70 Am. St. Rep. 326; Wake- 
field y. Brown, 38 Minn. 361, 37 N. W. 788, 
8 Am. St. Rep. 671 ; Den v. Peterson, 31 N. 
C. 184; Thomas v. Wyatt, 31 Mo. 188, 77 
Am. Dec. 640. Under this rule, legal pro- 
ceedings against a married woman under 
an assumed name have been held good after 
judgment ; Clark y. Clark, 19 Kan. 522 ; and 
obligations incurred by or with third parties 
under her maiden name are mutually bind- 
ing; Lane v. Duchac, 73 Wis. 646, 41 N. W. 
962; Bogart v. Woodruff, 96 Gal. 609, 31 
Pac. 618; see Schoul. Dom. Rel. 40; until a 
decree in divorce giving a married woman 
leave to resume her maiden name goes into 
effect, or widowhood is succeeded by a new 
marriage, she keeps her former husband's 
surname; 2 P. D. 263. 

A grant of land under an assumed name 
will pass title ; and evidence is admissible to 
prove Identity ; Wakefield v. Brown, 38 Minn. 
361, 37 N. W. 788, 8 Am. St. Rep. 671. The 
omission or mistake of a Christian name of 
the person to whom it is made (if he can be 
identified) will not avoid a patent; North- 
western F. E. Co. V. Fire Extinguisher Co., 
1 Ban. &amp; A. 177, Fed. Cas. No. 10,337 ; or a 
grant; 2 Co. Lritt. 255; or a devise; 5 Co. 
68; 2 Atk. 372. Apparently it was earlier 
held that an omission or mistake in the 
Christian name of the grantee rendered the 
grant void; Cro. Eliz. 328; Bac. Max. 107. 

When a person uses a name in making a 
contract under seal, he will not be per- 
mitted to say that it is not his name: as, 
if he sign and seal a bond "A and B" (being 
his own and his partner's name), and he 
had no authority from his partner to make 
such a deed, he cannot deny that his name 
is A and B; 1 T. Raym. 2; 1 Salk. 214. 
And if a man describes himself in the body 
of a deed by the name of James, and signs 
it John, he cannot, on being sued by the 
latter name, plead that his name is James; 
3 Taunt 505; Cro. Eliz. 897, n. a. See 3 
P. &amp; D. 271; 11 Ad. &amp; E. 594; Preiss v. Le 
Poidevin, 19 Abb. N. C. (N. T.) 123. A man 
may sue by the name by which he has been 
known from childhood, instead of by that 
given him by his parents; Donaldson v. 
Donaldson, 31 Wkly. Law Bui. (Ohio) 102. 

The right to the exclusive use of a name 
in connection with a trade or business is 
familiar to the law; and any person using 
that name, after a relative right of this 
description has been acQuired by another, 
is considered guilty of a fraud, or at least 
an invasion of another's rights, and renders 
himself liable to an action, or he may be 
restrained from the use of the name by in- 
junction. But the mere assumption of a 
name which is the patronymic of a family 
by a stranger who has never been called by 



that name is a grievance to the family for 
which the law affords no redress; L. R. 2 
P. C. 441. See L. R. 2 Oh. 307. A name may 
be a trade-mark; L. R. 10 Ch. D. 436; 1 
Eq. 518; 13 Beav. 209; Wolfe v. Bamett, 24 
La. Ann. 97, 13 Am. Rep. 111. A person 
cannot, however, have an exclusive right of 
trade-mark in a name as against all others 
bearing the same name, and honestly using 
the name in competition, unless the defend- 
ant uses the same brand or stamp in con- 
nection with the name; Oilman v. Hunne- 
well, 122 Mass. 139; McLean v. Fleming, 96 
U. S. 245, 24 L. Ed. 828; Howe v. Mach. Co., 
50 Barb. (N. T.) 236. But such exclusive 
right to a name may be acquired as against 
a corporation called, by the same name. 

"Dear Sir," at the commencement of a 
letter sent to one of the contracting parties 
which contains the terms of a contract, will 
be read as the name of that party so as to " 
be a good note of the contract, if the letter is 
enclosed in an envelope addressed to that 
party ; [1897] 1 Q. B. 688. 

See an article on personal names by O. S. 
Arnold, 15 Y. L. J. 227; also an extensive 
note on names in 14 L. R. A. 690. 

See EtBCTioN; Identitate Nominis; Teade- 
Maek; Signature; Misnomee. 

NAMED. Mentioned nominatim, if not by 
all their names, by some at least, either 
Christian or surnames. 22 L. J. Ch. 398. 

It is sometimes used, but only In a sec- 
ondary sense, as meaning mentioned or re- 
ferred to. 34 S. J. 129. 

NAMELY. A difCerence, in grammatical 
sense, in strictness exists between the words 
namely and including. Namely imports in- 
terpretation, i. e. indicates what is included 
in the previous term; but including imports 
addition, i. e. indicates something not includ- 
ed. 2 Jarm. Wills 222. 

NAMIUM. An old word which signifies 
the taking or distraining another person's 
movable goods. 2 Inst. 140 ; 3 Bla. Com. 149. 
A distress. Dalrymple, Feud. Pr. 113. 

NAMIUM VETITUM. The unjust taking 
of another person's cattle and driving them 
to an unlawful place, under pretence of dam- 
age having been done by them, in which case 
the owner may demand satisfaction for the 
injury. Cowell. 

NANTISSEMENT. In French Law. The 

contract of pledge; if of a movable, it is 

called gage, and if of an immovable, anti- 
chr^se; Brown, Diet. 

NARR. (an abbreviation of the word nar- 
ratio). A declaration in a cause. 

NARRATIQ. A common-law name for the 
plaintiff's declaration or statement of claim 
as being a narrative of facts on which he 
relies. 

NARRATOR. A pleader who drew narrs, 
or pleadings (in the time of William I). 



NARRA'tOR 



2289 



NATIONAL BANKS 



See CoNTE^jR. Swviens narrator, a sefjeant- 
at-law. Fleta, 1. 2, c. 37. Obsolete." 

NARROW SEAS. In English Law. fTbose 
seas wliich a(Jjoin the coast of England. Ba- 
con, Abr. Prerogative (B 3). „ 

NA;SCITURUS. Not yet bom. This term 
Is a]5plle(ii in marriage settleufcents to the 
Tinbcrn cKildren of a particular marriage. 
nat:is (b6rn) being used to designate] those 
already bom. i 

HATALE. The state or condition -of a 
mnn acquired by birth. ■ 

NAT 10. A native place. Co well. 

NATION. An .independent ^ body politic. 
A society of men united together for the 
■purpose of promoting their mutual safety 
/and advantage by the joint efforts of jtheir 
Combined strength. 

But every combination of men wlio govern them- 
selves independently oJ all others' will not be con- 
sidered a nation ; a body of pirate* for example, 
who govern themselves, is not a nation. To consti- 
tute a nation, another ingredient is required. The 
body thus formed must respect other nations in 
general, and each of its members in particular. 
Such a society has it affairs and Interests ; it de- 
liberates and takes resolutions in common,— thus 
becoming a moral p*son, who pastee^ses an under- 
standing and will and is susoeptiHIe of obligations 
and rights. Vattel, Prelim. §§ 1, ^■, Cherokee Na- 
tion V. Georgia, B Pet. (U. S.) B2. 8 L. Ed. 25. 

It belongs to the government to declare 
whether they will consider a ' colony which 
has thrown off the yoke of the mother-coun- 
try as an independent state ; and untili the 
government have decided oijuttho quemion, 
courts of justice are bound to considen the 
ancient state of things as remainlnal un- 
changed ; Hoyt V. Gelston, 13 Johns 
141; Gelston v. Hoyt, id. 561. .See" 
Nation V. Georgia, 5 Pet. (TJ. 
25; 1 Kent 22. 

In American constitutional 
state is applied to the sever 
the Union, while the word «oj 
to the whole body of the people embraced 
within the jurisdiction of the federal govern- 
ment; Cooley, Const. Lim. See Tex^^s v. 
White, 7 Wall. (U. S.) 720, 19 L. Ed. 227. 

NATIONAL. A word commonly used in 
dii:j)gmatic language and in treaties to jindi- 
cate a citizen or subject of a given country. 

NATIONAL BANKS. Banlvs created and 
governed under the provisions of the "Na- 
tional Bank Act." 

They are private corporations organized 
under a general law of congress, by iojlivid- 
ual Stockholders, with their own capital, for 
private gain, and managed by officers, afeents, 
and employfis of their own selection. They 
■* "iStitute no part of any branch of the gov- 
Hent of the United Stat'^s, and whatever 
.„Bc benefit they contribute to the country 
J'' return for grants and privileges conferred 
'"**p them by statute, is of a general fiature 
'^^tijjjg frojjj their business relations to the 

?ouv.— 144 




people through individual citizens, and not 
as direct representatives of the state as a 
body politic in exercising its legal and con- 
stitutional functions ; Branch v. U. S., 12 Ct. 
CI. (U. S.) 281; but they are instruments de- 
signed to aid the government in an impor- 
tant branch of the public service; Farmers' 
&amp; M. N. Bk. V. Bearing, 91 U. S. 29, 23 L. Ed. 
196. Congress in the exercise of an undis- 
puted constitutional power to provide a cur- 
rency for the whole country, may constitu- 
tionally secure the benefit of it to the people 
by appropriate legislation, and to that end 
may restrain the circulation of any notes not 
issued under its authority ; Veazie Bk. v. 
Fenno, 8 Wall. (U. S.) 548, 19 L. Ed. 482. 

National banks are quasi public institu- 
tions and for the purpose for which they are 
instituted are national in their character, 
and within constitutional limits are subject 
to control of congress, and not to be inter- 
fered with by state legislative or judicial 
action except so far as congress permits; 
Van Reed v. Bank, 198 U. S. 554, 25 Sup. 
Ct. 775, 49 li. Ed. 1161, 3 Ann. Gas. 1154; 
whether solvent or insolvent, they are ex- 
empt from attachment before judgment in 
any state, etc., court; id. 

The minimum capital allowed is $100,000, 
except that banks with a capital of not less 
than $50,000 may, with the approval of the 
secretary of the treasury, be organized in 
any place the population of which does not 
exceed 6,000 inhabitants, and with not less 
than $25,000, with like sanction, in any place 
the population of which does not exceed 
3,000 inhabitants; no association shall be 
organized in a city of more than 50,000 popu- 
lation with a capital of less than $200,000. 

A national bank may change its name, or 
place of business, to any place within the 
same state, not more than thirty miles dis- 
tant, with the approval of the comptroller 
and by a vote of two-thirds of the stock- 
holders. 

The corporate existence is twenty years 
and a bank may at any time within two 
years next previous to the expiration of that 
period. With the approval of the comptroller, 
extend its existence for another period of 
twenty years. 

A bank may provide in its articles of as- 
sociation for an increase of its capital, the 
maximum to be approved by the comptroller ; 
no increase shall be valid until fully paid 
in and notice submitted to the comptroller. 
A bank may, by vote of shareholders owning 
two-thirds of its capital stock, and subject 
to the approval of the comptroller, reduce its 
capital, but not below the amount required 
by the act to authorize the formation of a 
bank, nor below the amount required for its 
outstanding circulation, nor until approved 
by the federal reserve board (infra). 

Shareholders are entitled to one vote for 
each share of stock, and may vote by proxy 



NATIONAL BANKS 



2290 



NATIONAL BANKS 



in writing, but no "officer, clerk, teller or 
Dookkeeper" of the bank shall act as proxy, 
and no shareholder, whose liability is past 
due and unpaid, shall be allowed to vote. 

Not less than five directors are required; 
they hold office for one year or until their 
successors have been elected and qualified; 
every director must, during his whole term 
of service, be a citizen of the United States ; 
at least three-fourths of the directors must 
have resided in the state, etc., in which the 
bank is located, for at least one year im- 
mediately preceding their election ; every di- 
rector must own in his own right at least 
ten shares of stock (only five shares in banks 
whose capital stock does not exceed $25,000) ; 
if a director becomes disqualified, his place 
is vacated (Act of February 8, 1905). Va- 
cancies in the board are filled by the board, 
to hold until the next election. If an elec- 
tion of directors is not made at the time ap- 
pointed, it may be held on a subsequent day, 
upon thirty days' notice given in a newspa- 
per published in the city, etc., in which the 
bank is located, or, if none, published In the 
nearest city, etc. If the articles do not fix 
the day of election, or if no election is held 
on the day fixed, such day shall be designat- 
ed by the directors in their by-laws or other- 
wise, and if they fail to do so, shareholders 
representing two-thirds of the shares may 
do so. The board chooses one of its mem- 
bers as president. 

Shareholders are individually responsible 
equally and ratably for the debts of the 
bank, to the extent of the amount of their 
stock therein at par value, in addition to 
the amount invested therein'. Persons hold- 
ing stock as executors, administrators, guard- 
ians or trustees are not liable as stockhold- 
ers, but the assets and funds in their hands 
are so liable. 

State banking institutions may be organ- 
ized as national banks. In such case, the 
articles of association may be accepted by a 
majority of the directors, who shall have 
the power to complete its organization; its 
shares may continue to be for the same 
amount as they were before, and the direc- 
tors may continue until others are elected. 

The total liability to a bank of any person, 
firm or corporation, for money borrowed, 
shall never exceed one-tenth of the capital 
stock of the association actually paid in and 
one-tenth of its unincumbered surplus capi- 
tal, both unincumbered, and the total of such 
liabilities shall in no event exceed thirty per 
cent, of the capital; but the discounting of 
bills of exchange in good faith against actu- 
ally existing values and the discount of com- 
mercial or business paper actually owned by 
the person negotiating the same, shall not be 
considered as money borrowed. 

The act of May 30, 1908, providing for na- 
tional currency associations, has been ex- 
tended to June 30, 1915, by the act of Dec. 
23, 1913 (infra). 



The powers of national banks-, are to be 
measured by the act creating thein ; Fowler 
V. Scully, 72 Pa. 456, 13 Am. Kep. 6^ ; Logan 
Co. N. Bk. V. ToWnsend, 139 U. fe- 67, 11 
Sup. Ct. 496, 35 L. Ed. 107; the word? of the 
act "by discounting and negotiating promis- 
sory notes, etc.," are not to be read as limit- 
ing the mode of exercising the "incidental 
powers" necessary to carry on the business 
of banking, but as descriptive of the kind of 
business which is authorized; Shlnkle v. 
Bank, 22 Ohio St. 516. A national b^nk 
may buy negotiable notes and bills of ex- 
change; Merchants' N. Bk. v. Hanson, ,33 
Minn. 40, 21 N. W. 849, 53 Am. Rep. 5 ; Un- 
ion N. Bk. V. Eowan, 23 S. C. 339, 55 Am. 
Eep. 26 ; Pape v. Bank, 20 Kan. 440, 27 AiA. 
Rep. 183. This power, it has been held, sim\ 
ply implies an authority to realize upon such' 
commercial paper as the bank may receive in\ 
the lawful conduct of its business, by nego-j 
tiating, selling, and transferring it by means ( 
of a re-discount obtained or otherwise. It' 
gives no implied authority to speculate or 
traffic in paper of this character or in finan- 
cial securities of any description; First N. 
Bk. v. Pierson, 24 Minn. 140, 31 Am. Rep. 
341; Lazear v. Bank, 52 Md. 78, 36 Am. 
Rep. 355. In the last case, by a divided 
court, the opinion was. qualified by the re- 
mark that a national bank might invest 
its surplus capital in notes. The purchas- 
ing and dlscountmg of paper has been held 
to be only a mode of loaning money ; Smith 
V. Bank, 26 Ohio St. 141. It may collect 
notes; Mound City P. &amp; C. Co. v. Bank, 4 
Utah, 353, 9 Pac. 709; deal in national bonds; 
Leach v. Hale, 31 la. 69, 7 Am. Rep. 112; 
Yerkes v. Bank, 69 N. Y. 382, 25 Am. Rep. 
208 ; and own coupons on state bonds ; First 
N. Bk. v. Bennington, 16 Blatch. 53, Fed. 
Cas. No. 4,807; and it may deal in stocks; 
Williamson V. Mason, 12 Hun (N. Y.) 97; 
but the tendency of the decisions is contra; 
First N. Bk. v. Hoch, 89 Pa. 324, 33 Am. Rep. 
769; Fowler v. Scully, 72 Pa. 456, 13 Am. 
Rep. 699 ; First N. Bk. v. Bank, 92 U. S. 122, 
23 L. Ed. 679 ; Weckler v. Bank, 42 Md. 581, 
20 Am. Rep. 95. It may ftnd '«»'«callja.tejai 
security, including Unit^l S^^ bond^ 
Third N. Bk. v. Boyd, 44 Md. 47, 22 Am. Rep. 
35; or the stock of anotljH: national bank; 
Germania N. Bk. v. Case, | 
Ed. 448; or a warehousfl 
chandisie; Cleveland v. I 
St. 17^; or a locomotivi 
Bank, 1 Hughes 101, Fe4 
but it may not lend its credit; Nat. Bk. of 
C. V. Atlunson, 55 Fed. 48®, It may borrow 
money on Its own notes, *ind pledge its a.s- 
sets for its repayment; li Bank. Mag. 1^ 
It may, in a fair and 6o^ fide compron^' 
of a contested claim agafast It, growing ' 
of a legitimate banking Jransaction, pai* 
larger sum than would h^ been exacte? 
satisfaction of a demand, so as to obtait 
the arrangement a transfer of stocks, ifJ 



U. S. 628, 25 L. 
I receipt for mer- 
koeman, 40 Ohio 
Shoemaker v. 

as. No. 12,801; 



NATIONAL BANKS 



2291 



NATIONAL BANKS 



in the belief that by turning the stocks 
into money under more favorable circum- 
stances a loss which would otherwise accrue 
from the transaction might be averted or 
diminished; First N. Bk. v. Bank, 92 U. S. 
122, 23 L. Ed. 679, affirming 39 Md. 600. 

It has authority to receive special de- 
posits of securities, etc., and is responsible 
for their loss if occasioned by gross negli- 
gence; First N. Bk. v. Graham, lOO U. S. 
699, 25 L. Ed. 750, affirming 79 Pa. 106, 21 
Am. Kep. 49; Turner v. Bank, 26 la. 562; 
Smith V. Bank, 99- Mass. 605, 97 Am. Dec. 59; 
Chattahoochee N. Bk. v. Schley, 58 Ga. 369; 
Pattison v. Bank, 80 N. Y. 82, 36 Am. Rep. 
582 ; Prather v. Kean, 29 Fed. 498 ; contra, 
Wiley V. Bank, 47 Vt. 546, 19 Am. Rep. 122 ; 
Whitney v. Bank, 50 Vt. 388, 28 Am. Rep. 
503; or by want of ordinary care; Bank v. 
Zent, 39 Ohio St. 105 ; Lancaster County N. 
Bk. V. Smith, 62 Pa. 47. 

It may take legal proceedings to recover 
stolen properfiy for itself or for depositors, 
and will be held responsible for lack of dili- 
gence, skill, and care in performing such an 
undertaking ; Wylie v. Bank, 119 U. S. 361, 
7 Sup. Ct. 268, 30 L. Ed. 455. 

A national bank has no power to indorse 
a note for compensation ; Nat. Bk. v. Burr, 
27 Hun (N. Y.) 109; but, should it do so, 
only the government may object; id.; Nat. 
Bk. V. Whitney, 103 TJ. S. 99, 26 L. Ed. 443 ;. 
but it may guarantee a note ; People's Bk. &gt;. 
Bank, 101 U. S. 183, 25 L. Ed. 907. It may 
not receive deposits when insolvent; Cragie 
V. Hadley, 99 N. Y. 131, 1 N. E. 537. It can- 
not be garnisheed for a deposit of a trust 
estate or pay out funds of a bankrupt ex- 
cept upon a warrant of an assignee in bank- 
ruptcy of the district or by the register in 
bankruptcy of the district; Havens v. Bank, 
6 Tbomp. &amp; C. (N. Y.) 346. 

National banks may purchase, hold, and 
convey real estate for the following pur- 
poses, and for no others: 1. Such as shall 
be necessary for its immediate accommoda- 
tion in the transaction of its business. 2. 
Such as shall be mortgaged to it in good 
faith by way of security, for debts previ- 
ftusly contracted. 3. Such as shall be con- 
veyed to it in satisfaction of debts previous- 
ly contracted in the course of its dealings. 
4. Such as it shall purchase at sales under 
judgments, decrees, or mortgages held by the 
association, or shall purchase to secure debts 
due to it; title in the latter case, or under 
mortgage, to be held for no longer than five 
years. And see Union N. Bk. v. Matthews, 
98 U. S. 621, 25 L. Ed. 188. 

It is now settled that a bank may law- 
fully take a mortgage to secure future in- 
debtedness ; Simons V. Bank, 93 N. Y. 269; 
Chornton v. Bank, 71 Mo. 228; Winton v. 
iJttle, 94 Pa. 64; Turner v. Bank, 78 Ind. 
19; Oldham v. Bank, 85 N. 0. 240. Such a 
loan of money on real estate security by a 
national bank is valid between the parties ; 



Union Nat. Bk. v. Matthews, 98 U. S. 621, 25 
L. Ed. 188, reversing Matthews v. Skinker, 
62 Mo. 329, 21 Am. Rep. 425; contra, Fowler 
V. Scully, 72 Pa. 456, 13 Am. Rep. 699 ; Frid- 
ley V. Bowen, 87 111. 151 ; and that it had so 
loaned money in violation of the prohibition 
of the national banking law does not give 
the debtor a right to object; the United 
States alone can complain ; Fortier v. Bank, 
112 U. S. 439, 5 Sup. Ct. 234, 28 L. Ed. 764 ; 
Schuyler N. Bk. v. Gadsden, 191 U. S. 451, 
24 Sup. Ct. 129, 48 L. Ed. 258. It may take a 
purchase-money mortgage on real estate sold 
by it; New Orleans N. Bk. v. Raymond, 29 
La. Ann. 355, 29 Am. Rep. 335 ; and it may 
purchase real estate at a judgment sale; 
Heath v. Bank, 70 Ind. 106; Reynolds v. 
Bank, 112 U. S. 405, 5 Sup. Ct. 213, 28 L. Ed. 
733 ; Upton v. Bank, 120 Mass. 153 ; Mapes 
V. Scott, 88 111. 352 ; and a prior mortgage if 
needful to protect the interest of the bank ; 
Holmes v. Boyd, 90 Ind. 332. It may take 
real estate in payment of a debt due it, and 
may pay the excess value thereof over the 
debt; Libby v. Bank, 99 lU. 622; and may 
buy in outstanding interests in such real es- 
tate, or encumbrances thereon, if necessary, 
to enable it better to handle or dispose of it ; 
Cockrill V. Abeles, 86 Fed. 505, 30 C. C. A. 
223; Holmes v. Boyd, 90 Ind. 332. If hold- 
ing a second mortgage, it may buy the prop- 
erty at a foreclosure sale under the first 
mortgage; Heath v. Bank, 70 Ind. 106. 

A converted bank may take real estate be- 
longing to it whilst it was a state bank; 
Scofield V. Bank, 9 Neb. 316, 2 N. W. 888, 31 
Am. Rep. 412 ; it may accept personal prop- 
erty in payment upon the sale of real estate 
belonging to it; First N. Bk. v. Reno, 73 la. 
145, 34 N. W. 796; and the assignment of a 
mortgage on land to secure a loan made at 
the time of the assignment; First N. Bk. v. 
Andrews, 7 Wash. 261, 34 Pac. 913, 38 Am. 
St Rep. 885. 

A transfer of stock in a national bank 
which is ipsolvent at the time, made with 
an intent to avoid liability, where the trans- 
feree has reason to believe that the bank is 
insolvent, will not relieve the transferror 
from the residuary liability to pay the debt 
of the bank, and such a transfer may be 
treated by the receiver as inoperative with- 
out regard to the financial condition of the 
transferee; but if the bank is solvent at 
the time of the transfer the motive with 
which it is made is immaterial; Stuart v. 
Hayden, 169 U. S. 1, 18 Sup. Ct. 274, 42 L 
Ed. 639. 

When not defined by a board of direc- 
tors the duties of the president and cashier 
are only such as may be incident to their 
offices respectively in their very nature, in 
the absence of anything to the contrary in 
the act of incorporation; Hodge's Ex'r v. 
Bank, 22 Gratt. (Va.) 58. Neither of these 
officers, nor both acting together, can give 
up a debt or liability to the bank, nor make 



NATIONAL BANKS 



2292 



NATIONAL BANKS 



any admissions whicli would release tlie 
maker of a note due to the bank from his 
legal responsibility; id.; Bank of U. S. v. 
Dunn, 6 Pet. (U. S.) 51, 8 L. Ed. 316. The 
president has no power to sell or surrender 
securities and receive others of an inferior 
value; First N. Bk. v. Bennett, 33 Mich. 520. 
Ordinarily his authority is very limited ; he 
may bring actions at law and employ coun- 
sel for the purpose of protecting the rights 
of the bank, but he is not its executive offi- 
cer nor has he charge of its money oper^.- 
, tions. He has no more power of manage- 
ment nor disposal of the property of the cor- 
poration than any other member of the 
board of directors unless further powers are 
conferred upon him by the charter of the 
bank or by the action of the managing 
board ; First N. Bk. v. Lucas, 21 Neb. 280, 31 
.N. W. 805. He may not make an agreement 
binding on the bank and embodying a trans- 
action not within the usual course of busi- 
ness of the bank ; First N. Bk. v. Hoch, 89 
Pa. 324, 33 Am. Rep. 769 ; but see Burton v. 
Burley, 13 Fed. 811, 9 Biss. 253. 

A bank is liable upon notes, executed by 
it through its cashier, for loans made by 
another bank in an amount not so great as 
to create suspicion, where the actual man- 
agement of the bank was left entirely to 
such cashier, and the negotiation and all 
the correspondence were such as might lead 
the officers of the lending bank to believe 
that he was acting on authority and in good 
faith and honest Intention, though the mon- 
ey was used by hun for his own individual 
purposes, and the signature of the president 
was forged; City N.' Bk. v. Bank, 8.0 Fed. 
859, 26 C. C. A. 195 ; but where the affairs 
of a national bank were managed entirely 
by the cashier, who was universally be- 
lieved to be honest and capable, but whose 
dishonesty and reckless management result- 
ed in wrecking the bank, the president and 
directors, most of whom were farmers know- 
ing little of banking, were not guilty of neg- 
ligence so as to be liable for losses to credi- 
tors because they failed to examine the 
bpoks, the statements being prepared and 
furnished them by the cashier, and reporting 
the bank, to be in a prosperous condition, and 
there being no grounds of suspicion known 
to them; Warner v. Penoyer, 82 Fed. 181, 
following Brlggs v. Spaulding, 141 U. S. 132, 
11 Sup. Ct. 924, 35 ,t. Ed. 662. 

The United States district court has jur- 
isdiction of suits against national banks, 
brought by the United States or by direction 
of any officer thereof, and of cases for wind- 
ing up their affairs, and of all suits brought 
by any bank to enjoin the comptroller, or a 
receiver acting under his direction. Banks 
are "declared citizens of the states in which 
they are located," , for the purposes of all 
other suits by or against them, real, personal 
or mixed. Judiciary Act of March 3, 1911. 

A national bank may bring suit -in the 



circuit court out of its district, against a 
citizen of the district where the court sits; 
Manufacturers' N. Bk. v. Baack, 8 Blatchf. 
13T, Fed. Gas. No. 9,052; Davis v. Cook, 9 
Nev. 134 ; and state courts have jurisdiction 
of suits brought by national banks ; First N. 
Bk. V. Hubbard, 49 Vt. 1, 24 Am. Rep. 97; 
but this must be a state court of its locality ; 
Bank v. Bank, 14 Wall. (U. S.) 383, 20 L. 
Ed. 840; Crocker v. Bank, 101 Mass. 240, 3 
Am. Rep. 336. 

Mortgages held by national banks are 
not subject to taxation by u state ; First N. 
Bk. V. Kreig, 21 Nev. 404, 32 Pac. 641; nor 
can the stock In a national bank be taxed 
in any state other than that in which the 
bank is located ; De Baun v. Smith, 55 N. J. 
L. 110, 25 Ati; 277. 

A national bank may go into liquidation 
and be closed by a vote of the shareholders 
of • two-thirds of its stock; R. S. § 5220; 
although it be contrary to the wishes and 
against the Interests of the owners of the 
minority of the stock; Watkins v. Bank, 51 
Kan. 254, 32 Pac. 914. In case of a failure 
to pay its circulating notes, tl;e comptroller 
may appoint a receiver to wind up national 
banks; R. S. § 5284. 

State banks may be changed into national 
banks ; the change when made Is a transit, 
and not a creation ; see Coffey v. Bank, 46 . 
Mq. 140, 2 Am. Rep. 488; and does not affect 
its Identity or its right to sue upon obliga- 
tions or liabilities incurred to it by its for- 
mer name ; Michigan Ins. Bk. v. Eldred, 143 
U. S. 293, 12 Sup. Ct. 450, 36 L. Ed. 162. 

Federal Reserve Banks. The act of De- 
cember 23, 1913, is entitled an act "to pro- 
vide for the establishment of federal reserve 
banks, to furnish an elastic currency, to 
afford means of rediscountlng commercial 
paper, to establish a more effective super- 
vision of banking in the United States, and 
for other purposes." 

Federal Reserve Districts. It provides 
that the secretary of the treasury, the secre- 
tary of agriculture and the comptroller of 
the currency, acting as "the reserve bank 
organization committee," shall designate not 
less than eight nor more than twelve cities 
as federal reserve cities, and divide the con- 
tinent of the United States, exclusive of 
Alaska, into districts, each to contain only 
one such city. Only the federal reserve 
board, when organized, shall review their 
action, and may readjust the districts and 
create new ones, not exceeding twelve in all. 

The committee shall supervise the or- 
ganization in each of the cities of a federal 
reserve bank, entitled, e. g., "Federal Re- 
serve Bank of Chicago." 

Every national bank is required, and ev- 
ery eligible bank in the United States and 
every trust company within the District of 
Columbia is authorized, to signify in writing 
within sixty days after the passage of the 
act its acceptance of its terms. 



NATIONAL BANKS 



2293 



NATIONAL BANKS 



Every national bank within the district is 
required within thirty days after notice to 
subscribe to the stock of such reserve bank 
In a sum equal to six per cent, of its paid-up 
capital and surplus. The shareholders of 
every reserve bank are individually respon- 
sible, but not one for another, for the en- 
gagements of the reserve bank to the ex- 
tent of the amount of their subscriptions at 
par in addition to the amount subscribed. 

Any national bank failing to signify Its 
acceptance of the act within sixty days shall 
cease to act as a reserve agent, upon thirty 
days' notice within its discretion from the 
committee or the reserve board. 

Should any national bank fail within one 
year after the passage of the act to become 
a member bank, or to comply with the act, 
its franchises under the national banking 
act or under this act shall be forfeited, but 
only upon suit in a United States court of 
competent jurisdiction, brought where the 
bank is located, under the direction of the 
reserve board, by the comptroller of the 
currency. In case of any such noncompli- 
ance, other than the failure to become a 
member bank, every participating or as- 
senting director is held personally liable 
for all damages such bank, Its shareholders, 
or any other person shall have sustained. 
If the subscription by banks to the federal 
reserve banks or any one or more of them 
be, in the judgment' of the committee, in- 
sufficient to provide the necessary capital, 
the committee may oflfer to public sub- 
scription at par such amount of reserve 
bank stock as the committee may determine; 
No individual, partnership or corporation, 
other than a member bank of its district, 
can subscribe for or hold at any time more 
than $25,000 par value of reserve bank stock. 
Such stock is to be known as public stock 
and may be transferred on the books of the 
reserve bank by the chairman of its board of 
directors. If the total bank and public sub- 
scriptions to the stock of the reserve banks 
or one or more of them be insufficient to pro- 
vide the necessary capital, the committee 
shall allot to the United States such amount 
of stock as it shall determine, to be paid for 
by the United States at par out of any mon- 
ey in the treasury not otherwise appropri- 
ated. 

Stock not held by member banks shall not 
be entitled to voting power. 

No reserve bank shall commence business 
with less than $4,000,000 subscribed capital. 
The organization of the reserve districts 
and reserve cities shall not change the pres- 
ent status of reserve cities and central re- 
serve cities, except in so far as the act 
changes the amount of reserves that may 
be carried vsrith approved reserve agents lo- 
cated therein. 

Branch Offices. Each reserve bank shall 
establish branch banks within the district, 
to be operated by directors under the- rules 



of the reserve board. Branch bank directors 
shall possess the same qualifications as di- 
rectors of the reserve banks. Four of said 
directors shall be selected by the reserve 
bank and three by the federal reserve board, 
and they shall hold office during the pleas- 
ure, respectively, of the parent bank and the 
federal reserve board. The reserve bank 
shall designate one of the directors as man- 
ager. 

Federal Reserve Banks, When the mini- 
mum amount of stock prescribed by this 
act for the organization of any reserve bank 
shall have been subscribed and allotted, the 
committee shall designate any five banks of 
those whose applications have been received, 
to organize a reserve bank. When the or- 
ganization certificate has been filed with the 
comptroller, the reserve bank shall become 
a body corporate with the ordinary powers, 
for a period of twenty years, and may ap- 
point by its board of directors such officers 
and employfis not otherwise provided for in 
the act and dismiss them at pleasure. It 
may deposit with the United States treasurer 
bonds of the United States as provided by 
existing laws and receive circulating notes 
equal to the par value of the bonds; but 
the Issue thereof shall not be limited to the 
capital stock of such reserve bank. 

Reserve banks shall be conducted under 
control of directors with the usual powers 
and those prescribed by law ; they shall ad- 
minister their affairs "fairly and impartial- 
ly and without discrimination in favor of or 
against ' any member bank or banks and 
shall, subject to the provisions of law and 
the orders of the reserve board, extend to 
each member bank such discounts, advance- 
ments and accommodations as may be safely 
and reasonably made, with due regard for 
the claims and demands of other member 
banks." 

The board of directors shall consist of 
nine members, holding office for three years, 
and divided in classes, of three each, desig- 
nated as classes A, B,and C. Class A shall 
be chosen by the stockholding banks. Class 
B shall be persons actively engaged in their 
district in commerce, agriculture or some 
other Industrial pursuit Class C shall be 
designated by the reserve board, which shall 
designate one of them as chairman. No 
senator or representative in congress shall 
be a member of the reserve board or an offi- 
cer or director of a reserve bank. 

No director of class B shall be an offi- 
cer, director or employe of any bank. No 
director of class C shall be an officer, di- 
rector, employe, or stockholder of any baak. 

An elaborate plan for the choice of direc- 
tors of classes A and B is provided, for 
which see the act. 

Class O directors shall be appointed by the 
reserye board ; they shall have been at least 
two years residents of the district. One of 
them shaU be appointed chairman of the 



NATIONAL BANKS 



2294 



NATIONAL BANKS 



board and as "federal reserve agent" ; he 
shall be a i)erson of "tested banking ex- 
perience." Another member of class C, of 
like experience, shall be deputy chairman 
and deputy reserve agent. 

Stock Issues. Eeserve banks may increase 
their capital stock and surplus as member 
banks increase their capital stock, or addi- 
tional banks become members_or decrease it 
as member banks decrease their capital 
stock or surplus 'or cease to be members. 
Such stock owned by ' memher banks shall 
not be transferred or hypothecated. When 
a member bank increases its capital stock 
or surplus, it must subscribe for an addition- 
al amount of capital stock equal to six per 
cent, of the increase, and may upon a reduc- 
tion of its capital surrender a proportionate 
amount, or upon liquidation surrender all its 
holdings, receiving back its cash-paid sub- 
scriptions and one-half of one per cent, a 
month from the period of the last dividend, 
not to exceed the book value thereof, less 
any liability to the reserve bank. 

Division of Earnings. Stockholders of re- 
serve banks are entitled to annual cumula- 
tive dividends of six per cent, after the pay- 
ment of which the remaining net earnings 
shall be paid to the United States as a fran- 
chise tax, except that one-half thereof shall 
be paid into a surplus fund until it shall 
amount to forty per cent, of the paid-in cap- 
ital of such banii. 

Reserve banks, including the stock, sur- 
plus and Income, shall be exempt from all 
taxation except on real estate. 

R. S. § 5154, is amended to provide that 
any bank incorporated under special or gen- 
eral law of any state or of the United States 
and having an unimpaired capital sufficient 
to entitle it to become a national bank may, 
by a vote of not less than fifty-one per cent, 
of the capital stock and the approval of the 
Comptroller, become a national bank, if such 
conversion shall not be in contravention of 
the state law. 

State Banks as Members. Any bank in- 
corporated by special law of any state or 
organized under the general laws of any 
state or of the United States may apply to 
the committee or to the reserve board for 
the right to subscribe for reserve bank stock 
within its district, but the applying bank 
must have a paid-up unimpaired capital suf- 
ficient to entitle it to become a national 
bank. 

Power is given in certain cases to the re- 
serve board to require member banks to sur- 
render their stock in the reserve bank upon 
repayment of the cash-paid subscriptions as 
aforesaid, less any liability to the reserve 
bank except for subscriptions not previously 
called. The reserve board may in a proper 
case restore the membership. 

A federal reserve 'board is created, which 
shaU consist of the secretary of the treasury, 
the comptroller of the currency, ex offloio, 



and five members appointed by the president 
by and with the advice and consent of the 
senate. Not more than one of such five ap- 
pointive members shall be selected from any 
reserve district, and the president shall have 
due regard to a fair representation of the 
different commercial, industrial and geo- 
graphical divisions of the country. The five 
appointive members shall receive salaries of 
$12,000, and the comptroller shall receive 
$7,000 for his services as a member of the 
board. At least two of such five members 
shall be "persons experienced in banking or 
finance." One shall be designated by the 
president to serve for two years, one for four 
years, one for six years,' one for eight years 
and one for ten years. Thereafter the terms 
shall be ten years, unless sooner removed for 
cause by the president. One of the persons 
shall be designated by the president as gov- 
ernor and one as vice-governor of the board. 

Nothing in the act shall take away any 
powers heretofore vested in the secretary of 
the treasury in regard to the treasury de- 
partment, and wherever any power vested 
by this act in the reserve board or the re- 
serve agent appears to confiict with the pow- 
ers of the secretary of the treasury, such 
powers shall be exercised subject to the su- 
pervision and control of the secretary. 

A bureau in the treasury department is 
created, charged v?ith. the execution of all 
laws relating to the issue and regulation of 
nation'al currency, etc. ; the comptroller of 
the currency is to be chief of such bureau. 

The reserve board is empowered to ex- 
amine the accounts, books and affairs of 
each federal reserve bank and each mem- 
ber bank and to require such statements and 
reports as it may deem necessary; it shall 
publish once a week a statement .showing 
the condition of each reserve bank and a 
consolidated statement of all reserve banks. 
It may permit or, on the aflirmative note of 
at least five of its members, require reserve 
banks to rediscount the discounted paper 
of other reserve banks, at rates of interest to 
be fixed by it. 

It may suspend for a period not exceed- 
ing thirty days, and from time to time re- 
new such suspension for periods not exceed- 
ing fifteen days, "any reserve requirement 
specified in this act," but with certain pro- 
visos. 

It may add to the number of reserve cities 
or central reserve cities or reclassify them. 

It may remove or suspend any officer or 
director of any reserve bank. It may re- 
quire the writing off of doubtful or worth- 
less assets by any reserve bank; for any vio- 
lation of the act suspend the operations of 
any reserve bank, take possession thereof, 
administer the same, and liquidate or re- 
organize it. It has general supervision over 
reserve banks. It may grant by special per- 
mit to national banks applying therefor, 
when not in contravention of state or local 



NATIONAL BANKS 



2295 



NATIONAL BANKS 



law, the right to act as trustee, executor, ad- 
ministrator, or registrar of stocks and bonds. 
Federal Advisory Council. A "federal ad- 
visory* council" is created to consist of as 
many members as there are federal reserve 
districts. Bach federal reserve bank ap- 
points one member thereof. The council 
meets at Washington at least four times a 
year and oftener if called by the reserve 
board, and it may meet there or elsewhere 
as they may deem necessary. It has power 
to confer directly with the reserve board on 
general business conditions, to make oral or 
written representations concerning matters 
within the jurisdiction of the board, to call 
for information and to make recommenda- 
tions In regard to discount rates, rediscount 
business, note issues, reserve conditions in 
the various districts, the purchase and sale 
of gold or securities by reserve banks, open- 
market operations by said banks and the 
general affairs of the reserve banking sys- 
tem. 

Powers of Federal Reserve Batiks. Such 
bank may receive from any of its member 
banks and the United States deposits of 
current funds in lawful money,- national- 
bank notes, federal resei"ve notes, or checks 
and drafts upon solvent member banks or 
other federal reserve banks, payable upon 
presentation; or, solely for exchange phr- 
poses. may receive from other reserve banks 
deposits of current funds in lawful money, 
national-bank notes, etc. Upon the indorse- 
ment of any of its member banks, with a 
waiver of demand, notice and protest, a re- 
serve bank may discount notes, drafts and 
bills of exchange arising out of actual com- 
mercial transactions, that is. Issued or 
drawn for agricultural, industrial or com- 
mercial purposes, or the proceeds of which 
have been used, or are to be used, for such 
purposes. This shall not include notes, etc., 
covering merely investments or issued or 
drawn for the purpose of carrying or trad- 
ing in stocks, bonds or other investment se- 
curities, except government bonds and notes. 
Such notes, drafts and bills discounted must 
have a maturity at the time of discount of 
not more than ninety days, except that if 
dr&amp;wn or issued for agricultural purposes 
or based on live stock and having a matu- 
rity not exceeding six months, they may be 
discounted in an amount to be limited to a 
percentage of the capital of the reserve 
bank, to be ascertained and fixed by the re- 
serve board. 

A reserve bank may discount acceptances 
based on importation or exportation of goods 
and having a maturity at the time of dis- 
count of not more than three months and 
endorsed by at least one member bank, but 
the amount thereof shall at no time exceed 
more than one-half of the paid-up capital 
arid surplus of the bank for which the re- 
discounts are made. The aggregate of such 
notes and bills bearing the signature and 



endorsement of any one person, firm or 
corporation, rediscounted for any one bank, 
shall at no time exceed ten per cent, of the 
unimpaired capital and surplus of such 
bank; but this restriction shall not apply to 
the discount of bills of exchange drawn in 
good faith against actually existing values. 

A member bank may accept drafts and 
bills of exchange drawn on it and growing 
out of transactions involving the importa- 
tion and exportation of goods having not 
more than six months sight to run; but no 
bank shall accept such bills to an amount 
equal at any time in the aggregate to more 
than one-half its paid-up capital stock and 
surplus. 

E. S. § 5202, is amended so as to provide 
that no national bank shall at any time he 
indebted to an amount exceeding its unim- 
paired capital stock except on account of 
demands of the following nature: Notes of 
circulation; moneys deposited with or col- 
lected by it ; bills of exchange or drafts 
drawn against money actually on deposit or 
due thereto; liabilities to its stockholders 
for dividends and reserve profits; and lia- 
bilities incurred under the act. 

The rediscount by any reserve bank of 
bills receivable and of domestic and foreign 
bills of exchange and acceptances shall be 
subject to the regulations of the reserve 
board. 

Open-Market Operations. Any reserve 
bank may, under the rules of the reserve 
board, purchase and sell in the open market 
either from or to domestic or foreign banks, 
etc., cable transfers and bankers' acceptanc- 
es and bill's of exchange of the kind and ma- 
turities as by this act made eligible for re- 
discount with or without the endorsement of 
a member bank. ' It shall have power to deal 
in gold coin and bullion and make loans 
thereon ; to buy and sell bonds and notes of 
the United States and bills, notes, revenue 
bonds and warrants with maturity from date 
of purchase of not exceeding six months is- 
sued in anticipation of the collection of taxes 
or of the assured revenue of any state, coun- 
ty, district, political subdivision or munici- 
pality in the continental United States, in- 
cluding irrigation, drainage and reclamation 
districts, but under the rules of the reserve 
board. It may purchase from member banks 
and sell, with or without endorsement, bills 
of exchange arising out of business transac- 
tions as thereinbefore defined. It may estab- 
lish from time to time, subject to review by 
the reserve board, rates of discount for each 
class of paper, which shall be fixed with a 
view of accommodating commerce and busi- 
ness. 

It may establish accounts vrtth other re- 
serve banks for exchange purposes and with 
the consent of the reserve board open and 
maintain banking accounts in foreign coun- 
tries. 
2fo*e Issues. Federal reserve notes to be 



NATIONAL BANKS 



2296 



NATIONAL BANKS 



issued at the discretion of the reserve board 
for the purpose of making advances to fed- 
eral reserve banks are authorized. They are 
notes of the United States and "shall be re- 
ceivable by all national and member banks 
and federal reserve banks and for all taxes, 
customs and other public dues. They shall 
be redeemed in gold on demand at the treas- 
ury department of the United States or in 
gold or lawful money at any federal re- 
serve bank." 

The federal reserve bank, in applying to 
the federal reserve agent for federal reserve 
notes, shall tender to such agent collateral 
in amount equal to the sum of the notes thus 
applied for, which shall consist of notes and 
bills accepted for rediscount under the act. 
The reserve board may at any time call upon 
the reserve bank for additional security to 
protect the reserve notes issued to it. 

Every reserve bank shall maintain a re- 
serve in gold or lawful money of not less 
than thirty-five per cent, against its deposits 
and reserves in gold of not less than forty 
per cent, against its reserve notes in actual 
circulation and not oflfset by gold or lawful 
money deposited with the federal reserve 
agent. 

The reserve board shall require each re- 
serve bank to maintain on deposit in the 
United States treasury a sum in gold suffi- 
cient In the judgment of the secretary for 
the redemption of federal reserve notes and 
in no event less than five per cent, but such 
deposit shall be included as part of the forty 
per cent, reserve above required. Any re- 
serve bank may reduce its liability for out- 
standing reserve notes by depositing with 
the federal reserve agent, its federal reserve 
notes, gold, gpld certificates or lawful mon- 
ey of the United States. 

Bank Reserves. Demand deposits within 
the act shall comprise all deposits payable 
within thirty days, and time deposits shall 
comprise all deposits payable after thirty 
days, and all savings accounts and certifi- 
cates of deposit which are subject to not less 
than thirty days' notice before payment. 

After a federal reserve bank is established 
In any district, every subscribing member 
bank shall maintain reserves according to 
an elaborate scheme, as to which reference 
must be made to the act. 

Bank Examinations. The comptroller, 
with the approval of the secretary of the 
treasury, shall appoint examiners, who shall 
examine every member bank at least twice 
a year and oftener if necessary; the reserve 
board may authorize examination by the 
state authorities to be accepted in the case 
of state banks or trust companies and may 
at any time direct the special examination 
of state banks or trust companies that are 
stockholders of a reserve bank. 

The reserve board shall at least once a 
year order an examination of each- reserve 
bank and upon joint applica,tlon of ten mem- 



ber banks shall order a special examination 
of and a report upon any such bank. 

Loans on Farm Lands. Any national bank 
not situated in a central reserve city may 
make loans secured by improved and unin- 
cumbered farm land situate within its re- 
serve district, but not for more than five 
years nor exceeding one-half of the actual 
value of the property offered as security. 
Such loans may be inade in an aggregate 
sum not exceeding twenty-five per cent, of 
its capital and surplus and one-third of its 
time deposits. The reserve board shall have 
power from time to time to add to its list 
qf cities from which its members shall not 
be permitted to make loans on real estate. 

Foreign Branches. Any national bank 
with a capital and surplus of $1,000,000 or 
more may apply to the reserve board for au- 
thority to establish branches in foreign coun- 
tries or dependencies of the United States 
and to act as fiscal agents of the United 
States. 

National banks having circulating notes 
secured otherwise than by United States 
bonds shall pay for the first three months a 
tax at the. rate of three per cent, per annum 
upon the average amount of such of their 
notes in circulation as are based on the de- 
posit of such securities, and afterwards an 
additional tax rate of one^half of one per 
cent, per annum for each month until a tax 
of six per cent, per annum is reached, and 
thereafter a tax of six per cent, per annum 
upon the average amount of such notes. 

Pertain changes are made in the national 
banking act, as to which attention is called 
tp the, act. 

Finally, if any part of the act shall be ad- 
judged inyalid, it shall not affect the remain- 
der of the act ; the right to alter, amend or 
repeal the act is expressly reserved. 

See Deposit; Interest; Peoxy; Resebve; 
Bank. 

NATIONAL CHURCH. A church estab- 
lished by law in a country or nation. See 
Chubch or England. 

NATIONAL CURRENCY. Notes issued by 
national banks and by the government. Dull 
V. Com., 25 Gratt. (Va.) 965. See Cdbbent 
Monet ; Money ; Legal Tendeb. 

NATIONAL DEBT. A sum owing by the 
government to individuals who have advanc- 
ed money to it for public purposes, either in 
anticipation of the produce of the particular 
branches of the revenue, or on credit of the 
general power which the government pos- 
sesses of levying the amount necessary to 
pay interest for the money borrowed or to 
repay the principal. See Funding System. 

NATIONAL DOMAIN. See Lands, Public. 

NATIONAL DOMICIL. See DoMiciL. 

NATIONAL ENSIGN. The national flag. 
See Flag. 



NATIONAL GOVERNMENT 



2297 



NATURAL AFFECTION 



NATIONAL GOVERNMENT. A govern- 
ment of the people of a single state or na- 
tion, united as a community by what is 
termed the social compact, and possessing 
complete and perfect supremacy over persons 
and things so far as they can be made the 
lawful objects of civil government. A fed- 
eral government is distinguished from a na- 
tional government by its being the govern- 
ment of a community of independent and 
sovereign states united by compact. Piqua 
Branch Bank v. Knoup, 6 Ohio St. 393. 

NATIONAL GUARD. A name given to the 
organized militia in some parts of the Unit- 
ed States. See Militia. 

NATIONALITY. Character, status, or 
condition, with reference to the rights and 
duties of a person as a member of some one 
state or nation rather than another. 

Nationality may be determined from origin, 
naturalization, domlcil, residence, trade, or 
other circumstances; i Halleck, Int. L. 403. 

The term is in frequent use with regard 
to ships. Nationality determined by one's 
birthplace or parentage is called nationalitv 
of origin; that which results from naturali- 
zation, is hy acquisition. In feudal times, 
nationality was determined exclusively by 
the place of birth, jure soU; but under the 
laws of Athens and Bome the child followed 
that of the parents, jure sanguinis. "Of 
these two tests, the place of birth and the 
nationality of the father, neither is at pres- 
ent adopted without qualification by British, 
French, or American law. The laws of these 
countries exhibit, in fact, different coml^ina- 
tlons of the two. Great Britain and the Unit- 
ed States laying chief stress on the place of 
birth, while in France the father's national- 
ity determines, though not absolutely and in 
all cases, that of the child ; and tjils latter 
theory has found acceptance among other 
European nations," as Belgium, Bavaria, 
Prussia, and Spain. Morse, Citizenship 10. 
The subject is usually regulated by treaty. 

See EXPATEIATION. 

See Alien ; Allkgiastiob ; Citizen ; Deni- 
zen ; DoMiciL ; EiXpatbiation ; Natubaliza- 

TION. 

NATIONS, LAW OF. See Intebnational 
Law. 

NATIVE, NATIVE CITIZEN. A natural- 
bom subject. 1 Bla. Com. 366. Those born 
in a country, of parents who are citizens. 
Morse, Citizenship 12. See Citizen. There 
is no distinction between native horn as used 
in the French Extradition treaty and natural 
born as used in the extradition act; 37 W. 
R. 269. 

NATIVO HABENDO. A writ which lay 
for a lord when his villein had run away 
from him. Termes de la Ley. 

NATIVUS. See Neif. 



NATURA BREVIUM. 

Eeevidm. 



See Old Natuba 



NATURAL AFFECTION. The affection 
which one naturally feels towards those who 
are nearly allied to him. It sometimes sup- 
plies the' place of a valuable consideration 
in contracts ; and natural affection is a good 
consideration in a deed. 2 Steph. Com. 68. 
See Baeqain and Sale; Covenant to Stand 
Seized ; Consideration. 

NATURAL ALLEGIANCE. See Alle- 
giance. 

NATURAL AND REASONABLE WEAR 
AND TEAR. Wear and tear by use. Dam- 
age by operation of nature, as by freshets, is 
not included therein. 20 N. J. L. 544. 

NATURAL- BORN. See Natixealization. 

NATURAL-BORN SUBJECT. See Natu- 
ealization. 

NATURAL CHILDREN. Bastards; chil- 
dren bom out of lawful wedlock. But in a 
statute declaring that adopted children shall 
have all the rights of "natural" children, the 
word "natural" was used in the sense of 
legitimate; 9 Am. L. Reg. 747. 

In Civil Law. Children by procreation, as 
distinguished from those by adoption. 

In Louisiana. Illegitimate children who 
have been adopted by the father. La. Civ. 
Code, art. 220. 

NATURAL DAY. That space of time in- 
cluded between the rising and the setting of 
the sun. See Day. 

NATURAL DEATH. See Death. 

NATURAL EQUITY. That which is found- 
ed in natural justice, in honesty and right, 
and which arises ex wquo et bono. 

It corresponds precisely with the definition of 
Justice or natural law. which is a constant and 
perpetual will to give to every man what is his. 
This kind of equity embracss so wide a range that 
human tribunals have neyer attempted to enforce 
it. Eyery code of laws has left many matters of 
Statural justice or equity wholly unprovided for, 
from the difficulty of framing general rules to 
meet them, from the almost impossibility of en- 
forcing them, and from the doubtful nature of the 
policy of attempting to give a legal sanction to 
(Juties of Imperfect obligation, such as charity, 
gratitude, or kindness, i Bouvier, Inst. n. 3720. 
See Equity. 

NATURAL FOOL. An idiot; one born 
without the reasoning powers or a capacity 
to acquire them. 

NATURAL FRUITS. The natural produc- 
tion of trees, bushes, and other plants, for 
the use of men and animals, and for the re- 
production of such \trees, bushes, or plants. 

This expression is used in contradistinc- 
tion to artificial or figurative fruits: for 
example, apples, peaches, and pears, are 
natural fruits ; interest is the fruit of mon- 
ey, and this is artificial. 

NATURAL GAS. See Gas. 

NATURAL HEIRS. As used in a will and 
by way of executory devise, they are con- 
sidered as of the same legal import as "heirs 



NATURAL HEIRS 



2298 



NATURALIZATION 



of the body." Smith v. Pendell, 19 Conn. 112, 
48 Am. Dec. 146. 

NATURAL INFANCY. A period of non- 
responsible life, which ends with the seventh 
year. Whart. Diet. 

NATURAL LAW. See Law of Nature. 

NATURAL LIBERTY. See Libertt. 

NATURAL LIFE. The period between 
birth and natural death. The use of the 
word natural before life in a sentence of 
solitary confinement in a state prison for 
life, is a surplusage and does not affect the 
sentence; People v. Wright, 89 Mich. 70, 50 
N. W. 792. See Death. 

NATURAL OBLIGATION. One which in 
honor and conscience binds the person who 
has contracted it, but which cannot be en- 
forced in a court of justice. Pothier, nn. 173, 
191. See Obligation ; Moeal Obligation. 

NATURAL PERSONS. See Person. 

NATURAL PRESUMPTIONS. Presump- 
tions of fact ; those which depend upon their 
own form and efficacy in generating belief or 
conviction In the mind, as derived from those 
connections which are pointed out by ex- 
perience. 

NATURAL RESOURCES, CONSERVA- 
TION OF. See Lands. 

NATURAL WATERCOURSE. A natural 
stream flowing in a defined bed or channel, 
with banks and sides, and having permanent 
sources of supply. Barkley v. Wilcox, 86 N. 
T. 140, 40 Am. Rep. 519; Hinkle v. Avery, 
88 la. 47, 55 N. W. 78, 45 Am. St. Rep. 224. 
See Wateecoubse. 

NATURALEZA. In Spanish Law. The 

state of a natural-bom subject. White, New 
Recop. b. 1, t. 5, c. 2. 

NATURALIZATION. The act by which an 
alien is made a citizen of the United States 
of America. 

The act of adopting a foreigner and cloth- 
ing him with all the privileges of a native- 
bom citizen. Osborn v. Bank, 9 Wheat. (U. 
S.) 827, 6 L. Ed. 204; 9 Op. Atty.-Gen. 359. 

A nation, or the sovereign who represents 
it, may grant to a stranger the quality of a 
citizen, by admitting him into the body of 
the political society. This is called naturali- 
zation. Vattel, Laws of Nat., bk. 1, ch. xix. 
§§ 212-214. 

It is believed that every state In Christen- 
dom accords to foreigners, with more or less 
restrictions, the right of naturalization, and 
that each has some positive law or mode of 
its own for naturalizing the native-born sub- 
jects of other states, without reference to the 
consent of the latter for the release of the 
transfer of the allegiance of such subjects. 
See Morse, Citizenship, 66. 

Naturalization, of Itself, conveys no right 
of suffrage; Pars. Rights, Amer. Citizen 
190; though by It a foreigner becomes, to 



all intents and purposes, a citizen of the 
United States, with no disability except 
that he cannot become president or vice- 
president. It does not operate as a bar 
against prosecution In one's native coun- 
try for prior offences; 2 Whart. Dig. Int. 
L. § 180. The provision of the constitu- 
tion applies to persons of foreign birth only ; 
Scott V. Sandford, 19 How. (U. S.) 419, 15 
L. Ed. 691 ; but not to Mongolians, or Ameri- 
can Indians; In re Ah Yup, 5 Sawy. 155, 
Fed. Cas. No. 104; 7 Op. Atty. Gen. 746; In 
re Buntaro Kumagal, 163 Fed. 922; In re 
Knight, 171 Fed. 299; In re Takuji Xama- 
shita, 30 Wash. 234, 70 Pac. 482, 59 L. R. A, 
671 ; and not, formerly, to a freeman of color, 
born In the United States ; Smith v. Moody,. 
26 Ind. 299. Indians may be naturalized by 
act of congress; Scott v. Sandford, 19 How. 
(U. S.) 393, 15 L. Ed. 691. 

The term "white" in the naturalization 
acts has been generally construed to mean 
only the Caucasian race, and Chinese, Ha- 
wailans, Burmese and Canadian Indians have 
been refused naturaUz'atlon ; In re Ah 'Yup, 
5 Sawy. 155, Fed. Cas. No. 104; In re Kan- 
aka Nlan, 6 Utah, 259, 21 Pae. 993, 4 L. R. 
A. 726 ; Matter of Po, 7 Misc. 471, 28 N. Y. 
Supp. 383 ; In re Camille, 6 Fed. 256 ; as was 
a half breed whose father was of English 
birth and parentage and whose mother was 
half Chinese and half Japanese, though the 
applicant had served in the United States 
navy;. In re Knight, 171 Fed. 299; and a 
Japanese is held ineligible to citizenship;. 
In re Takuji Yamashita, 30 Wash. 234, 70 
Pac. 482, 59 L. R. A. 671. A Mexican of 
aboriginal descent was admitted because of 
treaties with Mexico ; In re Rodriguez, 81 
Fed. 337 ; a Parsee, though with considerable 
doubt; In re Balsara, 171 Fed. 294; Syrians 
in Rhode Island and Georgia, but not in Ne- 
braska ; In je Najour, 174 Fed. 735 ; and aft 
Armenian born in Asiatic Turkey ; id., where 
"white" is said to be a catch-all word and, 
to include all persons not otherwise classi- 
fied. The son of a German father and a 
Japanese mother was held ineligible to nat- 
uralization; In re Young, 198 Fed, 715. 

See White Persons. 

Entire communities have been naturalized 
by a single act of national sovereignty ; Boyd 
V. Nebraska, 143 U. S. 135, 12 Sup. Ct. 375, 
36 L. Ed. 103. The act of July 14, 1870, ex- 
tended the naturalization laws to persons of 
African descent. Under R. S. §' 1994, provid- 
ing that "any woman who Is now or here- 
after may be married to a citizen of the 
United States, and who might herself be 
lawfully naturalized, shall be deemed a citi- 
zen," applies to women of African blood; 
Broadis v. Broadis, 86 Fed. 951. 

An alien over twenty-one years who has 
enlisted in the United States army may, 
without previous declaration of Intention, be 
naturalized on one year's residence, good 



NATURALIZATION 



2299 



NATURALIZATION 



moral character and honorable discharge; 
Act of July 17, 1862, § 21. An alien seaman 
may become a citizen by declaring his in- 
tention and serving three years on a mer- 
chant vessel of the United States; R. S. § 
2174. 

An alien enemy cannot be naturalized; R. 
S. § 2171. 

Minor children, though bom out of the 
United States, If living within the United 
States at the time of the naturalization of 
the parents, become citizens by virtue of the 
naturalization of the parents ; Gumm v. Hub- 
bard, 97 Mo. 311, 11 S. W. 61, KJ 'Am. St. 
Rep. 312 ; but not so if they came after the 
father had been naturalized; Behrensmeyer 
V. Kreitz, 135 111. 591, 26 N. E. 704. 

A married woman was naturalized in Ex 
parte Pic, 1 Cra. 0. C. 372, Fed. Cas. No. 
11,118; she may be naturalized without the 
concurrence of her husband ; Priest v. Cum- 
mings, 16 Wend. (N. Y.) 617; and an alien 
woman becomes a citizen when her husband 
is naturalized, even if she is not of age at 
the time; Renner v. MuUer, 44 N. Y. Sup. 
Ot. 535; and though she may have lived in 
a . foreign country for years and has never 
come to the United States until after his 
death; 14 Op. Atty.-Gen. 402. 

The federal constitution, art. 1, § 8, vests 
in congress the power to establish a uniform 
rule of naturalization. "It follows from the 
very nature of the power that to be useful 
it must be exclusive, for a concurrent power 
in the states would bring back all the evils 
and embarrassments which the constitution 
was designed to remedy, and accordingly, 
though there was a momentary hesitation 
when the constitution first went into opera- 
tion as to whether the power might not still 
be exercised by the states subject only to the 
control of congress so far as the legislation 
of the latter extended as the supreme law, 
yet the power is now firmly established to 
be exclusive ;" 2 Story, Const. § 1104 ; Smith 
V Turner, 7 How. (U. S.) 556, 12 D. Ed. 702 ; 
Ex parte Knowles, 5 Cal. 300; Minneapolis 
V. Reum, 56 Fed. 576, 6 C. C. A. 31 ; and no 
state can pass a law which contravenes the 
acts of congress on the subject; Barzizas v. 
Hopkins, 2 Rand. (Va.) 276. A state may 
confer such rights of citizenship as it pleases 
so far as relates to itself only ; Scott v. Sand- 
ford, 19 How. (U. S.) 393, 15 L. Ed. 691; 
In re WehUtz, 16 Wis. 443, 84 Am. Dec. 700 ; 
but this is not to be confounded with the 
right of citizenship of the United States; 
Boyd v. Nebraska, 143 U. S. 160, 12 Sup. Ct. 
375, 36 L. Ed. 103 ; and no state can make a 
citizen of the United States ; Lanz v. Ran- 
dall, 4 DiU. 425, Fed. Cas. No. 8,080. 

By act of April 14, 1802, congress confer- 
red power to naturalize upon state courts 
having common-law jurisdiction and a seal 
and clerk; the subject has since been regu- 
lated by the act of 1906, infra. 

Congress may invest state courts with ju- 



risdiction to naturalize; In re Beavlns, 33 
N. H. 89; but it is held that it cannot im- 
pose the duty of naturalization upon state 
courts; Lab's Petition, 3 Pa. Dlst. R. 728; 
nor require them to act upon applications for 
naturalization; Rushworth v. Judges, 58 N, 
J. L. 97, 32 Atl. 743, 30 L. R. A. 761. See 
State V. Norris, 37 Neb. 299, 55 N. W. 1086. 
"Whether the state courts are bound to ex- 
ercise &lt;;oncurrent jurisdiction, permitted to 
be retained by them even when enjoined 
upon them by act of congress, is not altogeth- 
er well settled. Some strong intimations to 
the contrary have been given by the judges 
of the supreme court of the United States, 
and In some instances the courts of the par- 
ticular states have refused to exercise this 
jurisdiction." State v, Penney, 10 Ark. 621. 
No state can confer jurisdiction on any 
court, which does not come within the terms 
of the act of congress ; State v. Whlttemore, 
50 N. H. 245, 9 Am. Rep. 196. 

Courts of record, in naturalizing foreign- 
ers, act judicially, ascertaining the facts and 
applying the law to them ; Spratt v. Spratt, 
4 Pet. (U. S.) 407, 7 L. Ed. 897; the certifi- 
cate of naturalization issued by a court of 
competent jurisdiction is conclusive proof of 
the citizenship of the person named therein ; 
Ackerman v. Haenck, 147 111. 514, 35 N. B. 
381; though not the only proof. The judg- 
ment of the court, like every judgment, has 
been decided to be complete evidence of its 
own validity; id. 

When no record can be produced showing 
the naturalization of a foreigner, naturali- 
zation may be inferred from the fact that 
for a long time he voted, held office, and 
exercised all the rights and privileges of a 
citizen; Boyd v. Nebraska, 143 U. S. 135, 
12 Sup. Ot. 375, 36 L. Ed. 103. 

The act of congress of June 29, 1906, "to 
establish a bureau of immigration and natu- 
ralization, and to provide for a uniform rule 
for the naturalization of aliens throughout 
the United States," provides: Exclusive ju- 
risdiction to naturalize aliens is conferred 
upon the United States district courts in any 
state or territory, the District of Columbia, 
etc., also on "all courts of record in any 
state or territory, * * • having a seal, a 
clerk, and jurisdiction in actions at law or 
equity, or law and equity, in which the 
amount in controversy is unlimited." The 
jurisdiction of the courts specified extends 
only to aliens resident within the respective 
judicial districts of such, courts. An alien 
shall declare on oath before the clerk of any 
such court two years prior to his admission, 
and after he has reached the age of eighteen 
years, that it is his intention to become a 
citizen of the United States. Not less than 
two years or more than seven years after the 
declaration, he shall file a petition in writing 
signed by him, setting forth certain specified 
facts. The petition shall be verified by at 
least two credible witnesses, who shall state 



NATURALIZATION 



2300 



NATURALIZATION 



that they have personally known the appli- 
cant to be a resident of the United States 
for a period of at least five years continuous- 
ly, and of the state or district for at least 
one year immediately preceding the date of 
the filing of the petition and that he is in 
•every way qualified to become a citizen. Ap- 
plicant shall declare on oath in open court 
that he will support the Constitution of the 
United States, and renounce allegiance to any 
foreign prince, and any title or order of no- 
bility. 

In addition to the applicant's oath, the tes- 
timony of at least two witnesses as to the 
facts of residence, moral character and at- 
tachment to the princit)les / of the constitu- 
tion shall be required. 

If the alien who has declared his inten- 
tion dies before he is naturalized, his widow 
and minor children may be naturalized with- 
out mating any declaration. No person shall 
be naturalized or any certificate of naturali- 
zation be issued within thirty days preced- 
ing any general election within the district. 
The court may in its discretion, at the time 
of naturalization, make a decree cjianging 
the name of the alien and issue his certifi- 
cate in the new name. 

No person who disbelieves in organized 
government or is a member of or afliliated 
with any organization entertaining and 
teaching such disbelief, or advocates or 
teaches the duty, etc., of assaulting or killing 
of any officer or officers, or who is a polyg- 
amist, shall be naturalized. Nor shall any 
one who cannot speak the English language, 
but this does not apply to those who are 
physically unable to do so, if they are other- 
wise qualified. 

Final hearing shall be in open court before 
a judge. 

The act provides that any person belong- 
ing to the class qualified to become citizens, 
who has resided constantly in the United 
States for five years preceding May 1, 1910, 
and who, on account of misinformation as 
to the naturalization laws, has acted under 
a wrong impression, may, by showing such 
facts to a court having jurisdiction, receive 
a certificate of naturalization without requir- 
ing proof of filing a declaration of intention. 

The act provides for cancelling naturaliza- 
tions illegally procured. In Johannessen- v. 
U. S., 225 U. S. 227, 32 Sup. Ot. 613, 56 L. 
lild. 1066, it was held that this act was con- 
stitutional, and that certificates of naturali- 
zation, like patents' for lands and inventions, 
can, when issued ew parte, be annulled 
for fraud. As to the result, if the government 
had exercised the power expressly given un- 
der this act to appear and cross-examine, 
was not decided. 

Aliens may be naturalized in one dominion 
of the British Empire, but do not thereby be- 
come citizens of the empire or of apy other 
dominion. ' 



See Alien ; Chinese : Citizen ; Alle- 
giance; EXPATBIATION ; WHITE PERSONS. 

NATURALIZED CITIZEN. One who, be- 
ing born an alien, has lawfully become a 
citizen of the United States. See Natural- 
ization. 

NATURALLY. According to the usual 
course of things. Mitchell v. Clarke, 71 Oal. 
164, 11 Pac. 882, 60 Am. Rep. 529. 

NATURRECHT (German). The law of 
nature. See Jueispeudence. 

NAUCLERUS (Lat). The master or own- 
er of a vessel. Vicat. Voc. Jur. ; Oalvinus, 
Lex. 

NAUFRAGE. in French Maritime Law. 

When, by the violent agitation of the waves, 
the Impetuosity of the winds, the storm, or 
the lightning, a vessel is swallowed up, or 
so shattered that there remain only the piec- 
es, the accident is called naufrage. 

It differs from ^chouement, -wliich Is when the 
vessel remains whole, but is grounded; or from 
briSf which is when it strikes against a rock or a 
coast; or from sombrer, which is the sinking of 
the vessel in the sea when it is swallowed up, and 
which may be caused by any accident whatever. 
Fardessus, ii. 643. See Wbece. 

NAUGHT. Bad; defective. 

NAULAGE. See Natjlum. 

I 

NAULUM (Lat.). Freight or passage mon- 
ey. 1 Pars. Mar. Law 124, n. ; Bened. Adm. 
§ 288; Dig. 1. 6, § 1, qui potiores in pignore. 

NAUTA (Lat). One who charters {ex- 
eroet) a ship. L. 1, § 1, fC. nautw, caupo; 
Calvinus, L^x. Any one who is on board a 
vessel for the purpose of navigating her. U. 
S. V. Winn, 3 Sumn. 213, Fed. Cas. No. 16,740. 
Vicat, Voc. Jur. ; 2 Emerigon 448 ; Pothier, 
Pand. Ub. 4, tit. 9, n. 2 ; lib. 47, tit. 5, nn. 1, 
2, 3, 8, 10. A carrier by water. 2 Ld. Raym. 
917. 

NAUTICA PECUNIA. A loan to a ship- 
owner, to be repaid only upon the successful 
termination of the voyage, and therefore al- 
lowed to be made at an extraordinary rate 
of interest (nautioum foenus). Holland, Ju- 
rispr. 250. See Tbajectitia Peounia. 

NAUTICAL ASSESSORS. Experienced 
shipmasters or other persons having special 
knowledge of navigation and nautical af- 
fairs, who are called to the assistance of a 
court of admiralty in difficult cases involving 
questions of negligence, and who sit with the 
judge during the argument and give their 
advice upon questions of seamanship or the 
weight of testimony. The Empire, 19 Fed. 
559. 

NAUTICUM FOENUS. See FcENUs Nauti- 

CUM. 

NAVAGIUM. A duty on certain tenants 
to carry their lord's goods in a ship, 1 Mon. 
Aug. 922. 



NAVAIi ACADEMY 



2301 



NAVIGABLE WATERS 



NAVAL ACADEMY. A school at Annapo- 
lis, Maryland, for the education of officers 
for the navy. By act of Congress of July 
9, 1913, after June 30, 1913, and until June 
30, 1919, each senator and each representa- 
tive and delegate may appoint two midship- 
men; there shall be one from Porto Bico, 
two from the District of Columbia, and ten 
at large. Upon graduation, they are to be 
commissioned ensigns in the navy, or may 
be assigned to the lowest commissioned grade 
in the marine corps or the staff corps of the 
navy. Appointments upon the recommenda- 
tion of senators, representatives or delegates 
must be made by March 4th following no- 
tice of the vacancy; othervnse the secretary 
of the navy may appoint. All candidates 
must at the time of their examination be be- 
tween the ages of 16 and 20 years. 

Midshipmen are officers of the line in a 
qualified sense. Navy Reg. ch. II, 18, (3). 

NAVAL CADET. Midshipmen at the Na- 
val Academy were so called until the act of 
July 1, 1902, changed the name to midship- 
man. 

NAVAL COURTS. Courts held abroad in 
certain cases to Inquire into complaints by 
the master or seamen of a British ship, or 
as to the wreck or abandonment of such ship. 

NAVAL COURTS MARTIAL. See Couet 

Maetiai,. 

NAVAL LAW. A system of regulations 
for the government of the navy. 1 Kent 377, 
n. Homans, Nav. Laws; De Hart, Courts- 
Martial. 

NAVAL OFFICER. An officer of the cus- 
toms of the United States. 

His office relates to the estimating duties, 
countersigning permits, clearances, etc., certi- 
fying the collectors' returns, and similar du- 
ties. Act of March, 2, 1799. 

NAVAL PRIZE ACT. The act of 27 &amp; 28 

Vict. c. 25, which regulates questions of 
prize. See Peize. 

NAVARCHUS, NAVICULARIUS (Lat). 
In Civil Law. The master of an armed ship. 
Navicularius also denotes the master of a 
ship {patronus) generally, ulc. Ver. 4, 55; 
also, a carrier by water {escercitor navis). 
Calvinus, Lex. 

NAVIGABLE WATERS. Those waters 
which afford a channel for useful commerce. 
The Montello, 20 WaU. (U. S.) 430, 22 L. 
Ed. 391. 

The test by which the character of a 
stream as public or private is determined, is 
its navigability in fact ; Fulmer v. Williams, 
122 Pa. 191, 15 Atl. 726, 1 L. R. A. 603, 9 Am. 
St. Rep. 88 ; State v. Club, 100 N. C. 477, 5 
S. E. 411, 6 Am. St. Rep. 618. 

In its technical sense, the term navigable, 
at common law, is only applied to the sea, to 
arms of the sea, and to rivers which flow 
and reflow with the tide, — in other words, to 



tide-vraters, the bed or soil of which Is the 
property of the crown. All other waters are, 
in this sense of the word, unnavigable, and 
are, prima facie, strictly private property; 
but in England even such waters. If naviga- 
ble in the popular sense of the term, are, ei- 
ther of common right or by dedication, sub- 
ject to the use of the public as na^agable 
highways, the fee or soil remaining In the 
riparian proprietors ; 20 C. B. N. S. 1 ; Com. 
V. Charlestown, 1 Picls;. (Mass.) 180, 11 Am. 
Dec. 161. 

The rule of the common law, by which 
the ebb and flow of the tide has been made 
the criterion of navigability, has never been 
adopted in any of the United States, or. If 
adopted, it has been in a form modified and 
improved to fit the condition of the country 
and the wants of its inhabitants. According 
to the rule administered in the courts of this 
country, all rivers which are found "of suffi- 
cient capacity to float the products of the 
mines, the forests, or the tillage of the coun- 
try through which they flow, to marliet;" 
Browne v. Scofield, 8 Barb. (N. T.) 239; Har- 
rison V. Fite, 148 Fed. 781, 78 C. C. A. 447; 
or which are capable of use "for the floating 
of vessels, boats, rafts, or logs" ; Brown v. 
Chadbourne, 31 Me. 9, 50 Am. Dec. 641; 
Smart v. Lumber Co., 103 Me. 37, 68 Atl. 
527, 14 L. R. A. (N. S.) 1083 ; Hot Springs 
L. &amp; Mfg. Co., 106 Va. 176, 55 S. E. 580, 9 L. 
R. A. (N. S.) 894 (but see American River 
W. Co. v. Amsden, 6 Cal. 443 ; Haines v. Hall, 

17 Or. 165, 20 Pac. 831, 3 L. R. A. 609 ; Spo- 
kane Mill Co. V. Post, 50 Fed. 429; Falls 
Mfg. Co. V. Imp. Co., 87 Wis. 134, 58 N. W. 
257 ; are subject to the free and unobstruct- 
ed navigation of the public, independent of 
usage or of legislation; Treat v. Lord, 42 
Me. 552, 66 Am. Dec. 298; Morgan v. King, 

18 Barb. (N. Y.) 277; Homochitto River 
Com'rs V. Withers, 29 Miss. 21, 64 Am. Dec. 
126. See Gerrlsh v. Brown, 51 Me. 256, 81 
Am. Dec. ^69 ; Olson v. Merrill, 42 Wis. 203 ; 
Escanaba Co. v. Chicago, 107 U. S. 682, 2 
Sup. Ct. 185, 27 L. Ed. 442. Water navigable 
for pleasure boating must be regarded as 
navigable; Attorney General v. Woods, 108 
Mass. 436, 11 Am. Rep. 380; but the mere 
capacity to pass in a boat of any size, how- 
ever small, from one stream or rivulet to 
another, is not sufficient to constitute a navi- 
gable river of the United States; Leovy v. 
U. S., 177 U. S. 621, 20 Sup. Ct. 797, 44 L. 
Ed. 914. To make a stream a hlgjiway it 
must at least be navigable or floatable In its 
natural state at ordinary recurring winter 
freshets long enough to make it useful for 
some purpose of trade or agriculture ; Banks 
V. Brazier, 111 Ky. 909, 64 S. W. 983 ; Harri- 
son V. Fite, 148 Fed. 781, 78 C. C. A. 447; 
People V. Lumber Co., 107 Cal. 221, 40 Pac. 
531, 48 Am. St. Rep. 125; Kamm v. Nor- 
mand, 50 Or. 9, 91 Pac. 448, 11 L. R. A. (N. 
S.) 290, 126 Am. St. Rep. 698; mere ability 



NAVIGABLE WATERS 



2302 



NAVIGABLE WATERS 



to catch fish in a body of water does not 
make it navigable; Bolsa Land Co. v. Bur- 
dlck, 151 Cal. 254, 90 Pac. 532, 12 L. E. A. 
(N. S.) 275. 

Navigable streams are highways ; Attorney 
General v. Woods, 108. Mass. 436, 11 Am. 
Rep. 380; Lamprey v. State, 52 Minn. 181, 
53 N. W. 1139, 18 L. R. A. 670, 88 Am. St. 
Rep. 541 ; Grand Rapids v. Powers, 89 Mich. 
94, 50 N. W. 661, 14 L. R. A. 498, 28 Am. 
St. Rep. 276; a navigable stream is not a 
highway in the sense that that word is used 
in the constitution of South Carolina, forbid- 
ding the enactment of local or special laws 
to lay out, open, alter or work roads or high- 
ways; Manigault v.' Springs, 199 U. S. 473, 
26 Sup. Ct 127, 50 L. Ed.' 274. • 

The navigable waters of the United States 
are such as are navigable in fact; Scranton 
V. Wheeler, 57 Fed. 803, 6 C. C. A. 585, 16 
TJ. S. App. 152 ; and which by themselves, or 
in connection with other waters, form a con- 
tinuous channel for commerce with foreign 
countries or among the states ; Miller v. New 
York, 109 U. S. 385, 3 Sup. Ct. 228, 27 L. Ed. 
971. 

A river may be navigable below the ebb 
and flow of the tide in the sense of the com- 
mon law, and, in fact, navigable above ; and 
the question of boundary in respect to lands 
adjoining it will be determined by one prin- 
ciple above, and by another below tide-wa- 
ter; Attorney General v. R. Co., 27 N. J. 
Bq. 1. It is not necessary that the stream 
should be navigable all the year round; 
Thunder Bay R. B. Co. v. Speechly, 31 Mich. 
336, 18 Am. Rep. 184 ; Bucki v. Cone, 25 Fla. 
1, 6 South. 160. There can be no prescrip- 
tive right to maintain or continue an obstruc- 
tion to the navigation of a public stream; 
Olive V. State, 86 Ala. 88, 5 South. 653, 4 
L. R. A. 33. 

"The term 'navigable waters,' as common- 
ly used in the law, has three distinct mean- 
ings : first, as synonymous with 'tide-wa- 
ters,' being waters whether fresh or salt 
wherever the ebb and flow of the sea is felt; 
or second, as limited to tide-waters which 
are capable of being navigated for some use- 
ful purpose ; or third, as including all waters, 
whether within or beyond the ebb and flow 
of the tide which can be used for naviga- 
tion." Com. v. Vincent, 108 Mass. 447. See 
19 Am. L. Reg. N. S. 147. In North Caro- 
lina the test of navigability is not whether 
the stream is subject to the ebb and flow of 
the tide, but whether it is navigable for sea- 
going vessels ; State v. Bason, 114 N. C. 787, 
19 S. E. 88, 23 L. R. A. 520, 41 Am. St. Rep. 
811 ; while in South Carolina the test is its 
navigable capacity, without regard to the 
character of the craft ; Heyward v. Min. Co., 
42 S. C. 138, 19 S. E. 963, 20 S. E. 64, 28 L. 
R. A. 42, 46 Am. St. Rep. 702. 

In New York, it seems that courts are 
Ijoiind to take judicial notice of what streams 



are,' and what are not, highways, at com- 
mon law; Browne v. Scofield, 8 Barb. (N. 
Y.) 289; but it has been held that what is a 
navigable stream is a mixed question of law 
and fact; if a stream is not navigable the 
legislature cannot declare it to be so, because 
the legislature cannot appropriate it to pub- 
lic use without provision, for compensation ; 
Morgan v. King, 35 N. Y. 454, 91 Am. Dec. 58. 

The technical title to the beds of naviga- 
ble rivers of the United States is either in the 
states in which the rivers are situated or in 
the riparian owners, depending on the local 
law. It is a qualified one, and subordinate 
to the public right of navigation and sub- 
ject to the absolute power of congress over 
the improvement of navigable rivers. Un- 
der the constitution, congress can adopt any 
means for the improvement of navigation 
that are not prohibited by that instrument 
itself. The judgment of congress as to 
whether a construction in or over a naviga- 
ble river is or is not an obstruction to navi- 
gation is an exercise of legislative power and 
wholly within its control and beyond judicial 
review. The flow of the stream of a naviga- 
ble river is in no sense private property, 
and there is no room for judicial review, at 
the instance of a private owner of the banks 
of the stream, of a determination of congress 
that such flow is needed for the improvement 
of navigation. One placing obstructions in 
a navigable stream under a revocable permit 
of the secretary of war does not acquire any 
right to maintain them longer than the gov- 
ernment continues the license. Private right 
to running water in a great navigable stream 
is inconceivable. Every structure in the wa- 
ter of a navigable river is subordinate to 
the right of navigation and must be removed, 
even if the owners sustain a loss thereby, 
if congress, in assertion of its power over 
navigation so determines; U. S. v. Chandler- 
Dunbar Co., 229 U. S. 54, 33 Sup. Ct. 667, 
57 L. Ed. 1063. 

Such waters entirely within the limits of 
a state are subject to the same control by 
the federal government as those extending 
through or reaching beyond the limits of 
the state ; Minnesota C. &amp; P. Co. v. Pratt, 
101 Minn. 197, 112 N. W. 395, 11 L. R. A. (N. 
S.) "105. 

The use and control of waters lying with- 
in the geographical boundaries of the United 
States is not restrained by international 
comity;' Minnesota Canal &amp; P. Co. v. Pratt, 
101 Minn. 197, 112 N. W. 395, 11 L. K. A. (N. 
S.) 105. Express authority is necessary to 
authorize the laying out of a highway into 
a navigable body of water for the purpose of 
a wharf or landing place; Com'r. of High- 
ways V. Ludwick, 151 Mich; 498, 115 N. W. 
419, 15 L. R. A. (N. S.) 1170, 14 Ann. Cas. 
287; Chase v. Cochran, 102 Me. 431, 67 Atl. 
320; an act giving a city the right to pro- 
ject or extend streets over tide lands is au- 



NAVIGABLE WATERS 



2303 



NAVIGATION', RULES OP 



thorlzed only for the extension of the ex- 
isting streets ; Seattle &amp; M. Ry. Co. v. State, 
7 Wash. 150, 34 Pac. 551, 22 L. R. A. 217, 38 
Am. St. Rep. 866; it has been held that a 
lake may be filled in along the shore to ac- 
commodate a street; People v. Kirk, 162 
111. 138, 45 N. B. 830, 53 Am. St. Rep. 277 ; 
that a town has jurisdiction to lay out a 
highway over land that is above -mean high 
water mark although it is covered by the 
sea during the highest tides ; Sunt v. Com., 
183 Mass. 307, 67 N. B. 966. It has been 
held in England that the metropolitan board 
of works has no power to erect any works on 
the bed or soil of the Thames without the 
consent of the admiralty and the conserva- 
tors of the river; 13 C. B. N. S. 768 ; 8 Jur. 
N. S. 891; 6 L. T. N. S. 187; the fact that 
the extension of a railroad across an arm of 
the sea would interfere with plaintlfC's 
rights to navigate such waters does not in- 
flict on him an injury different from that 
done to the public at large so as to entitle 
him to an injunction ; O'Brien v. R. Co., 17 
Conn. 372. 

The act of congress of March 3, 1899, pro- 
vides that no bridge, dam, dike or causeway 
shall be built over any harbor, river, canal 
or other navigable water until the consent 
of congress shall have been obtained and the 
plans approved by the chief of engineers and 
the secretary of war. The consent of con- 
gress is not required if a bridge is built by 
authority of a state legislature across rivers 
and waterways the navigable portions of 
which be wholly within the limits of a 
single state. 

This act does not extend to an existing 
bridge but does cover the rebuilding of such ; 
Rogers Sand Co. v. R. Co., 189 Fed. 7, 71 C. 
C A. 419 (the earlier act of a like character 
of September 19, 1890, was held not to ap- 
ply to a bridge the construction of which 
had been authorized by law prior to the act ; 
Adams v. Ulmer, 91 Me. 47, 39 Atl. 347). 

In the absence of congressional action, a 
state may authorize a construction over nav- 
igable waters ; Depew v. Board, 5 Ind. 8 ; 
Highway Com'rs v. Chaffee, 1 Mich. N. P. 
147; Kansas City M. &amp; B. R. Co. v. Wiygul, 
82 Miss. 223, 33 South. 965, 61 L. R. A. 578; 
though it more or less obstructs navigation ; 
Fall River I. W. Co. v. R. Co., 5 Allen 
(Mass.) 221. 

See Dam ; Bbidgb ; Watees ; Wateb- 
COTJESE ; RivEES ; Lake ; Ripaeian Peopeie- 
TOBS; Tide-Watee. 

NAVIGATING. A vessel which, though 
touching bottom, forces her way by her own 
screw through the soft mud is navigating. 
Western Union Tel. Co. v. S. S. Co., 59 Fed. 
365, 8 C. C. A. 152. 

NAVIGATION ACT. The stat. 12 Car. XL 
c. 78. It was repealed by 6 Geo. IV. cc. 109, 
110, 114. See 16 &amp; 17 Vict. c. 107 ; 17 &amp; 18 
Vict. cc. 5 and 120 ; 3 Steph. Com. 145. 



NAVIGATION, RULES OF. Rules and 
regulations which govern the motions of 
ships or vessels when approaching each oth- 
er under such circumstances that a collision 
may possibly ensue. 

These rules are firmly maintained in the 
United States courts. A federal question ia 
presented by a ruling of a state court which 
substantially ignores the obligatory force 
of rules of navigation ; Belden v. Chase, 150 
U. S. 674, 14 Sup. Ct. 264, 37 L. Ed. 1218. 

The rules of navigation which prevailed 
under the general maritime law, in the ab- 
sence of statutory enactments, will be re- 
ferred to, although, as hereinafter stated, 
they have been superseded by express enact- 
ment in most of the copimercial countries of 
the world. 

These rules were derived mainly from the 
decisions of the high court of admiralty in 
England, and of the superior courts of the 
United States, and they are based upon the 
rules promulgated by the corporation of the 
Trinity House on the 30th of October, 1840, 
and which may be found in full in 1 W, 
Rob. 488. Though now codified, see infra, 
they are here continued as in the former 
edition as a matter of historical interest. 

For sailing-vessels adout to meet. 1. 
Those having the wind fair shall give way 
to those on a wind [or close-hauled]. 

2. When both are going by the wind, the 
vessel on the starboard tack shall keep her 
wind, and the one on the larboard tack bear 
up, thereby passing each other on the lar- 
board hand. 

3. When both vessels have the wind large 
or abeam, and meet, they shall pass each 
other in the same way, on the larboard 
hand; to effect which two last-mentioned 
objects the helm must be put to port. 

For a sailing and a steam vessel aiout 
to meet. 1. Steam-vessels are to be consid- 
ered in the light of vessels navigating with 
a fair wind, and should! give way to sailing- 
vessels on a wind on either tack. 

2. A steam-vessel and a sailing-vessel go- 
ing large, when about to meet, should each 
port her helm and pass on the larboard side 
of the other ; 1 W. Rob. 478 ; 2 id. 515. 

But in the United States courts it has 
been almost uniformly held, and the rule 
is now firmly established, that when a sail- 
ing-vessel and a steamer are about to meet, 
the sailing-vessel must, under ordinary cir- 
cumstances, and whether going large, or 
before the wind, or close-hauled by the 
wind, keep her course, and the steamer 
must take all the measures necessary to 
avoid a collision ; St. John v. Paine, 10 
How. (U. S.) 557, 13 L. Ed. 537; The R. R. 
Kirkland, 48 Fed. 760; The Havana, 54 Fed. 
411; The Blue Jacket, 144 U. S. 371, 12 
Sup. Ct. 711, 36 L. Ed. 469. 

For steam-vessels about to m^et. 1. When 
steam-vessels on different courses are about 
to meet under such circumstances as to in- 



NAVIGATION, RULES OF 



2304 



NAVIGATION, EULES OP 



volve the risk of collision, each vessel must 
put her helm to port, so as always to pass 
on the larboard side of the other. 

2. A steam-vessel passing another in a 
narrow channel must always leave the ves- 
sel she is passing on the larboard hand. 

The follovCing abstract of authorities may 
also be referred to as furnishing rules of 
decision (in addition to the general rules 
of navigation) in the particular cases allud- 
ed to ; and they vrill be found generally ap- 
plicable in cases of collision arising under 
the new regulations, as well as in cases 
arising under the general maritime law. 

When a steamer or other vessel Is about 
to pass another vessel proceeding in the 
same general direction, she must allow the 
foremost boat to keep her way and course, 
and must take the necessary measures to 
avoid a collision ; Whitridge v. Dill, 23 How. 
(U. S.) 448, 16 L. Ed. 581; Abb. Adm. Pr. 
108 ; The Rhode Island, 1 Blatchf . 363, Fed. 
Cas. No. 11,743. 

A vessel under sail or steam is bound to 
keep clear of a vessel stationary or at 
anchor, provided the latter is in a proper 
place, and exhibits a proper light, — the pre- 
sumption in such cases being that the ves- 
sel in motion is at fault ; 3 Kent 231 ; 3 W. 
Rob. 49. 

A vessel entering a harbor is bound to 
keep the most vigilant Watch to avoid a 
collision; Culbertson v. The Southern Belle, 
IS How. (U. S.) 684,' 15 L. Ed. 493; and in 
the night-time she ought generally to have 
her whole crew on deck ; The Scioto, 2 Ware 
(Dav. 359) 360, Fed. Cas. ^fo. 12,508. And 
see 3 Kent 231 ; 1 Dods. 467. 

By the general maritime law, vessels up- 
on the high seas were not ordinarily re- 
quired constantly to exhibit a light; 2 W. 
Rob. 4; The Delaware v. The Osprey, 2 
Wall. Jr. 268, Fed. Cas. No. 8,763; but the 
subject is now regulated by statute in the 
various maritime countries. 

Regulations made by variolis govern- 
ments are binding upon all vessels within 
the jurisdiction of ttat government; Story, 
Oonfl. Laws, ch..l4; 1 Swab. 38, 63, 96; 
Smith V. Condry, 1 How. (U. S.) 28, 11 L. 
Ed. 35; but it is beybnd the power of the 
legislature to make rules applicable to for- 
eign vessels when beyond their jurisdiction; 
that is, more than a marine league from 
their shores ; 1 Swab. 96. And see The New 
York V. Rae, 18 How. (U. S.) 223, 15 L. Ed. 
359. It has, accordingly, been held that an 
English rule is hot appli'cable in a case of 
collision on the high seas between a British 
and a foreign vessel, and that the latter 
could not set up in its defehce a violation of 
the Eijglish statute by the British vessel ; 1 
Swab. 63, 96; and it was declared that in 
such a case the general maritime law must 
be the rule of the court. See The City of 
Washington, 92 U. S. 31, 23 L. Ed. 60t). 

The British Government, by an Order in 



Council, in 1863, promulgated certain regu- 
lations for preventing collisions at sea. An 
Order in Council, in 1879, promulgated new 
regulations, to take effect on September 1, 
1880. These were adopted in pursuance of 
the recommendation of representatives of 
different nations, and are stated in the last- 
mentioned Order to have been very generally 
adopted by commercial nations. They were 
adapted to the United States with regard to- 
vessels on the high seas and in coast waters, 
in 1864 (R. S. § 4233). A revised code waa 
adopted by England in 1884, and then was 
adopted by the United States with reference 
to vessels on the high seas in 1885. (Eng- 
land by Orders in Council in 1896, 1897 and 
1906, amended the Code Qf 1884.) 

In 1890 under an international agreement 
congress adopted a complete system of rules 
of the road governing vessels both on the 
ocean and on our own inland waters. These 
rules consist of: 1. The International Rules 
agreed upon by all nations, which went 
into effect July 1, 1897 ; 1 R. S. Sup. 781. 2. 
Rules for the navigation of rivers, harbors, 
and inland waters of the United States, 
navigable by sea-going vessels, which went 
into effect October 7, 1897 ; 2 R. S. Sup. 620. 
3. Rules to regulate the navigation on the 
Great Lakes and their connecting and 
tributary waters as far east as Montreal, 
which went into effect March 1, 1895; 2 R.. 
S. Sujp. 320. 4. Rules for the navigation of 
the Red River of the North and rivers en- 
tering into the Gulf of Mexico and its trib- 
utaries, which are the same as were for- 
merly in use, and are to be found in R. S. 
§ 4233 and its amendments, and rules made 
pursuant to R. S. § 4412 by the Board of 
Supervising Inspectors of steam-vessels. 
Copies of all these rules are furnished on 
application by the Commissioner of Navi- 
gation. These various codes of rules are 
too long to be set forth here. An act of Jan- 
uary 19, 1907 (supplementary to the act of 
August 19, 1890), made rules for fishing 
vessels and boats, and repealed article 10 of 
the act of March 3, 1885, and also the act of 
August 30, 1894. 

It is evident that these rules and regula- 
tions were intended to supersede all other 
rules of navigation, and every other system 
of vessels' lights, wherever they may be 
adopted. They establish a well-devised and 
complete system of vessels' lights, and fur- 
nish plain and simple rules of navigation 
applicable to all the ordinary cases of ves- 
sels approaching each other imder such cir- 
cumstances as to involve the risk of collision, 
— leaving extraordinary cases, such as the 
meeting of vessels in extremely narrow or 
other very dllBcult channels (in respect to 
which no safe general rule can be devised), 
to the practical good sense and professional 
skill of those in charge of such vessels. Un- 
der all ordinary circumstances a vessel dis- 
charges her full duty to another vessel by a 



NAVIGATION, EULES OF 



2305 



NAVIGATION, RULES OP 



faitliful and literal observance of the inter- 
national rules; The Oregon, 158 U. S. 187, 
15 Sup. Ct. 804, 39 L. Ed. 943. Where there 
were no poritlve rules of navigation on a 
foreign river, but there was a certain prac- 
tice, it was held that a vessel which disre- 
garded the practice was responsible for a 
collision occurring thereby; L. B, 15 P. D. 
194. A departure from the rules, to be 
justifiable, must be necessary in order to 
avoid immediate danger. But that necessity 
must not have been caused by the negligence 
or fault of the party disobeying the rule; 
and courts of admiralty lean against the ex- 
ceptions; Crockett v. The Isaac Newton, 18 
How. (U. S.) 581, 583, 15 L. Ed. 492; 1 W. 
Rob. 157, 478. And see Belden v. Chase, 150 
U. S. 674, 14 Sup. Ct. 264i 37 L. Ed. 1218; 
The Maggie J. Smith, 123 U. S. 349, 8 Sup. 
Ct. 159, 31 L. Ed. 175. It is no excuse for a 
vessel, in departing from the navigation 
rules, when roundmg the Battery at New 
York, that vessels often agree -with each 
other to do so, when it appears that the 
vessel in question took upon herself the re- 
sponsibility of departing from the rules for 
her own convenience; The E. A. Packer, 58 
Fed. 251, 7_C. O. A. 216, 14 U. S. App. 684. 

Exceptions are admitted with reluctance 
and only where adherence to the rules must 
necessarily result In a collision; The Albert 
Dumois, 177 U. S- 240, 20 Sup. Ct. 595, 44 
I/. Ed. 751. 

The maritime law, however, requires that 
In collision cases every violation of a rule 
of navigation, and every other act or omis- 
sion alleged to be a fault, shall be considered 
in connection with all the attending cir- 
cumstances; and when by inevitable acci- 
dent, or the fault of one of two colliding 
vessels, a vessel free from fault is suddenly 
brought into such circumstances of imminent 
danger as probably to render the deliberate 
or proper exercise of the judgment and skill 
of an experienced seaman impossible, an er- 
ror of judgment, or other mistake, is not 
regarded as a legal fault; The Northern 
Indiana, 3 Blatch. 92, Fed. Cas. No. 10,320; 
The Havana, 54 Fed. 411; The Maggie J. 
Smith, 123 U. S. 349, 8 Sup. Ct 159, 31 L. 
Ed. 175. 

The proper and continual exhibition of 
the bright and colored lights which these 
rules and regulations prescribe, and their 
careful observance by the officer of the 
deck and the lookout of every vessel, con- 
stitute the very foundation of the system 
of navigation established by such rules and 
regulations. The exhibition of such lights, 
and the strict compliance with the rules in 
respect to stationing and keeping a compe- 
tent and careful person in the proper place 
and exclusively devoted to the discharge 
of the duties of a lookout, are of the utmost 
importance. 

The stringent requirements of our mari- 
time courts in respect to lookouts may be 
Bouv.— 145 



learned by consulting the following authori- 
ties; St. John V. Paine, 10 How. (U. S.) 
585 13 li. Ed. 537; The Northern Indiana, 
3 Blatch. 92, Fed. Cas. No. 10,320; The 
Clara, 55 Fed. 1021, 5 O. C. A. 390; The 
Charles H. SenfC, 53 Fed. 669 ; The John T. 
Pratt, 60 Fed. 1022. This rule admits of no 
exception on account of size, in favor of any 
craft capable of committing injuries; The 
Marion, 56 Fed. 271. A sailing-vessel is en- 
titled to assume that a steam-vessel, ap- 
proaching her, is being navigated with a 
proper lookout and with reasonable atten- 
tion to the obligations laid upon her; The 
Coe F. Young, 49 Fed. 167, 1 O. C. A. 219, 1 
U. S. App. 11. The absence of a lookout is 
not material where the presence of one 
would not have availed to prevent a colli- 
sion; The Blue Jacket, 144 U. S. 371, 12 
Sup. Ct. 711, 36 L. Ed. 469. 

The neglect to carry or display the lights 
prescribed by these rules and regulations 
will always be held, prima facie, a fault, in 
a collision case; Waring v. Clarke, 5 How. 
(U. S.) 441, 465, 12 L. Ed. 226; 3 W. Rob. 
191; Swab. 120, 245, 253, 519; 1 Lush. 382; 
The Ann Caroline, 2 Wall. (TJ. S.) 538, 17 
L. Ed. 833. And, upon the same principles, 
the neglect, in a fog, to use the prescribed 
fog-signals will also be considered, prima 
facie, a fault; Desty, Adm. § 360. See Foo. 

It will be observed that the duty of slack- 
ening, speed, in all cases when risk of colli- 
sion is involved, is absolutely and imperative- 
ly imposed upon every steam-vessel, by these 
regulations, and that they require that every 
steam-vessel shall stop and reverse her en- 
gine when necessary to avoid a collision. 

The duty of slackening speed in order to 
avoid a collision had been frequently de- 
clared by the maritime courts before the 
adoption of these regulations ; 3 Hagg. Adm. 
414; The Northern Indiana, 3 Blatch. 92, 
Fed. Cas. No. 10,320 ; 2 W. Rob. 1; 3 id. 95, 
270, 377; St. John v. Paine, 10 How. (U. S.) 
557, 13 L. Ed. 537 ; but there was no inflexi- 
ble rule requiring a steamer to slacken speed 
in all cases when there was risk of collision ; ' 
and the neglect to do it was held to be a 
fault only in those cases where its necessity 
was shown by the proofs. This left the ques- 
tion open to be determined by the courts in 
each particular case, and perhaps upon 
vague and unreliable estimates of time and 
distance and bearings, or upon conflicting 
and unsatisfactory testimony; but the legis- 
lature, in view of the great power and speed 
of the steamers now in general use, and the 
very disastrous consequences of a collision 
of such vessels when running at their ordi- 
nary speed, has wisely made the duty im- 
perative; The Illinois, 5 Blatch. 256, Fed. 
Cas. No. 7,002. Newton v. Stebbins, 10 How. 
(U. S.) 586, 13 L. Ed. 551; The Free State, 
91 U. S. 200, 23 L. Ed. 299; The State of 
California, 49 Fed. 172, 1 C. C. A. 224, 7 U. 
S. App. 20. See Colusion ; Mabitime Law. 



NAVIRE 



2306 



NE DISTURBA PAS 



NAVIRE. In French Law. A ship. Em- 
erig. Traite des Assur. c. 6, § 1. 

NAVY. The whole shipping, taken collec- 
tively, belonging to the government of an in- 
dependent nation, and appropriated for the 
purposes of naval warfare. It does not in- 
clude ships belonging to private individuals 
nor (in the United States, at least) revenue 
vessels or transports in the service of the 
war department. 

Under the constitution, congress has power 
to provide and maintain a navy. This power 
authorizes the government to buy and build 
vessels of war, to establish a naval academy, 
and to provide for the punishment of deser- 
tion and other crimes, and to make all need- 
ful rules for the government of the navy. 
See U. S. V. Bevans, 3 Wheat. (U. S.) 337, 4 
L. Ed. 404; Dynes v. Hoover, 20 How. (U. 
S.) 65, 15 I^ Ed. 83S; U. S. v. Bevans, 3 
Wheat (U. S.) 370, 4 L. Ed, 404. 

See Coubt-Maetial ; Navy Peesonnel 
Act; Naval Academy. 

NAVY BILLS. Bills drawn by officers of 
the British navy for their pay, etc. 

A bill of exchange drawn by the paymas- 
ter of a United States vessel, while abroad, 
to procure money for the expenses of his 
ship or fleet. 

NAVY DEPARTMENT. See Department. 

NAVY PERSONNEL ACT. The act of 
March 3, 1899, to reorganize and increase 
the efficiency of the navy and marine corps. 
It transferred engineer officers to the line 
and fixed their corresponding rank. It put 
officers of corresponding rank in the army 
and navy on the same general footing with 
respect to their general pay. See U. S. v. 
Thomas, 195 U. S. 4x8, 25 Sup. Ct. 102, 49 
li. Ed. 259. As to their corresponding rank, 
see Rank. 

NAVY REGISTER. An official Ust pub- 
lished semi-annually of the officers of the 
United States navy, their stations, rates of 
pay, etc., with a list of the ships. 

NAVY REGULATIONS. Regulations of 
the navy established by the secretary of the 
navy with the approval of the president. 
They have the force of law ; Ex parte Reed, 
100 U. S. 13, 25 L. Ed. 538. 

NE AOMITTAS (Lat). The name of a 
writ now practically obsolete, so called from 
the first words of the Latin form, by which 
the bishop is forbidden to admit to a bene- 
fice the other party's clerk during the pend- 
ency of a quare impedit. Fitzh. N. B. 37; 
Reg. Orig. 31; 3 Bla. Com. 248; 1 Bum, 
Eccl. Law 31. 

NE BAILA PAS (he did not deliver). A 
plea in detinue, by which the defendant de- 
nies the delivery to him of the thing sued 
for. 

NE DISTURBA PAS. In Pleading. The 

general issue in quwe impedit. Hob. 162. 



See Rast. Entr. 517 ; Winch, Entr. 703. Andr. 
Steph. PI. 230. 

NE DONA PAS, NON DEDIT. In Pleading. 

The general issue in formedon. It is in the 
following formula: "And the said C D, by 
J K, his attorney, comes and defends the 
right, when, etc., and says that the said E F 
did not give the said manor, with the appur- 
tenances, or any part thereof, to the said G 
B, and the heirs of his body issuing. In 
manner and form as the said A B hath in 
his count above alleged. And of this the 
said C D puts himself upon the country." 
10 Wentw. PL 182; Andr. Steph. PI. 230. 

NE EXEAT REPUBLICA, NE EXEAT 
REGNO (Lat. That he do not depart from 
the state, or kingdom). The name of a writ 
originally employed in England as a high 
prerogative process, for political purposes. 
Story, Eq. Jur. § 1467; Samuel y. Wiley, 50 
N. H. 353; but now applied in civil matters 
only, issued by a court of chancery, directed 
to the sherifC, reciting that the defendant in 
the case is Indebted to the complainant, and 
that he designs going quickly into parts with- 
out the state, to the damage of the complain- 
ant, and then commanding him to cause the 
defendant to give bail in a certain sum that 
he will not leave the state without leave of 
the court, and for want of such ball that he, 
the sheriff, do commit . the defendant to 
prison. 

This writ is a part of the English chan- 
cery practice and is usually a part of that 
practice in states where It is in force. It 
may be issued by the United States District 
Courts; Lewis v. Shainwald, 48 Fed. 492. 

This writ has been expressly abolished in very 
many of the states. Yet its place has been filled by 
other methods of procedure, similar In effect. The 
constitutions of Vermont, Pennsylvania, Kentucky, 
Mississippi, and Louisiana prohibit any restraint 
upon emigration. In Arlcansas the writ is abolished, 
and in the code of New York a system of arrest and 
bail is substituted. In Ohio and California it is 
abolished; Cable v. Alvord, 27 Ohio St. 654; Ex 
parte Harker, 49 Cal. 465. In , those jurisdictions 
where ne exeat is still recognized, the circum- 
stances under which the writ will be granted, and 
the requisites to its issuance, are largely regulated 
by statute; but certain general principles govern 
in nearly every case. These will be found set forth 
in Rhodes v. Cousins, 6 Rand. (Va.) 191, U Am. Dec. 
715. See 14 Am. Bee. 660, note. 

This writ is issued to prevent debtors from 
escaping from their creditors. It amounts, 
in ordinary civil cases, to nothing more than 
process to hold to bail, or to compel a party 
to give security to abide the decree to be 
made in his case; Bisph. Eq. § 36; 2 Kent 
32; Beames, Ne Exeat; 13 Viner, Abr. 537; 
1 Suppl. to Ves. Jr. 33, 352, 467 ; 1 Bla. Com. 
138; 19 V. &amp; B. 312; Smedberg v. Mark, 6 
Johns. Ch. (N. Y.) 138; Cable v. Alvord, 27 
Ohio St. 666; Adams v. Whitcomb, 46 Vt 
708; Clowes v. Judge, 1 Del. Ch. 295. 

Arrest under this writ is not in violation 
of a constitutional provision that a person 
shall not be imprisoned for debt, unless in 



NE EXEAT, KEPOBLTCA 



2307 



NE EXEAT REPUBLICA 



eases of tort, or where there Is a strong pre- 
sumption of fraud ; People v. Barton, 16 Colo. 
75, 26 Pac. 149. 

The writ may be issued against foreigners 
subject to the jurisdiction of the court, citi- 
zens of the same state, or of another state, 
when it appears by a positive affidavit that 
the defendant is about to leave the state, or 
has threatened to do so, and that the debt 
would be lost or endangered by his depar- 
ture; Mattocks v. Tremain, 3 Johns. Ch. (N. 
Y.) 75; Woodward v. Schatzell, id. 412. On 
the same principle which has been adopted 
In the courts of law that a defendant could 
not be held to -bail twice for the same cause 
of action, it has been decided that a writ of 
ne exeat was not properly issued against a 
defendant who had been held to bail in an 
action at law; 8 Ves. 594. 

This writ can be issued only for equitable 
demands; Nixon v; Richardson, 4 Des. Eq. 
(S. C.) 108; Smedberg v. Mark, 6 Johns. Ch. 
138; and not where the plaintiff by, process 
of law may hold the defendant to bail ; 3 Bro. 
C. C. 218; 8 Ves. Jr. 593; Orme v. McPher- 
son, 36 Ga. 573; MacDonough v. Gaynor, 18 
N. J. Bq. 249 ; Bonesteel v. Bonesteel, 28 Wis. 
245 ; and where there is an adequate remedy 
at law, the writ will be dissolved ; Hawthorn 
V. Kelly, 30 Ga. 965. It may be allowed in a 
case to prevent the failure of justice; Por- 
ter V. Spencer, 2 Johns. Ch. (N. T.) 169. 
When the demand is strictly legal, it cannot 
be issued, because the court has no jurisdic- 
tion. When the court has concurrent juris- 
diction with the courts of common law, the 
writ may, in such ease, issue, unless the par- 
ty has been already arrested at law; Porter 
V. Spencer, 2 Johns. Ch. (N. Y.) 170. In all 
cases when a writ of ne exeat is claimed, the 
plaintiff's equity must appear on the face 
of the bill ; Woodward v. Schatzell, 3 Johns. 
Oh. (N. X.) 414. 

It was granted only after bill filed; 3 P. 
Wms. 312; so by act of congress of March 
2, 1893 ; contra, 5 Ves. 92. 

The writ may be provided for in the final 
decree and will continue in force until dis- 
solved by the court or until the decree is 
satisfied; Lewis v. Shainwald, 48 Fed. 492. 
It is not superseded by a subsequent bond 
for the performance of final decree; Elliott 
V. Elliott (N. J.) 3'6 Atl. 951. It may be 
granted on motion founded on affidavit, but 
where the facts charged in the blU are such 
as to entitle the complainant to the writ. It 
is sufficient to refer to them as shoving the 
ground of the complainant's demand without 
restating them in the affidavit; Clayton v. 
Mitchell, 1 Del. Ch. 32. 

The amount of bail is fixed by the court 
itself; and a sum is usually directed suffi- 
cient to cover the existing debt and a rea- 
sonable amount of future interest, having re- 
gard to the probable duration of the suit; 
Gibert v. Colt, 1 Hopk, Ch. (N. Y.) 501, 14. 
Am. Dec. 557. 



The defendant arrested upon a writ of 
ne exeat may obtain a discharge of the writ 
upon giving bond, with surety, to answer and 
be amenable to the process of the court; 
Griswold v. Hazard, 141 T7. S. 260, 11 Sup. 
Ct. 972, 999, 35 L. Ed. 678. 

It is a breach of the bond If the party 
leaves the jurisdiction, although he has re- 
turned; In re Appel, 163 Fed. 1002, 90 0. C. 
A. 172, 20 L. R. A. (N. S.) 76. 

A writ of ne exeat proviMcia issued in 
colonial Pennsylvania only in cases of equi- 
table debts; WilUam Henry Rawle, Equity 
in Pennsylvania. 

NE INJUSTE VEXES (Lat.). In Old 
English Law. The name of a writ which is- 
sued to relieve a tenant upon whom his lord 
had distrained for more services than he 
was bound to perform. 

It was a prohibition to the lord, not un- 
justly to distrain or vew his tenant. Fitzh. 
N. B. Having been long obsolete, it was 
abolished in 1883. 

NE LUMINIBUS OFFICIATUR (Lat.). 
In Civil Law. The name of a servitude which 
restrains the owner of a house from making 
such erections as obstruct the light of the 
adjoining house. Dig. 8. 4. 15. 17 ; SBajviTUDE. 

NE RECIPIATUR (Lat.). That it be not 
received. A caveat or words of caution giv- 
en to a law officer, by a party in a cause, 
not to receive the next proceedings of his 
opponent. 1 SeU. Pr. 8. 

NE RELESSA PAS (Law Pr.). The name 
of a replication to a plea of release, by which 
the plaintiff insists he did not release. 2 
Bulstr. 55. 

NE UNGUES ACCOUPLE (Law Fr.). A 
plea by which the party denies that he ever 
was lawfully married to the person to whom 
it refers. See the form, 2 Wlls. 118; 10 
Wentw. PI. 158; 2 H. Bla. 145; 3 Chitty, PI. 
599. 

NE UNQUES EXECUTOR. A plea by 
which the party who uses it denies that the 
plaintiff is an executor, as he claims to be; 
or that the defendant is executor, as the 
plaintiff in his declaration charges him to 
be. 1 Chitty, PI. 484; 1 Saund. 274, n. 3; 
Comyns, Dig. Pleader (2 D 2) ; 2 Chitty, PI. 
498. 

NE UNQUES SEISIE QUE DOWER. A 

plea by which a defendant denies the right 
of a widow who sues for and demands her 
dower in lands, etc., late of her husband, be- 
cause the husband was not on the day of her 
marriage with him, or at any time afterwards, 
seised of such estate, so that she could be en- 
dowed of the same. See 2 Saund. 329; 10 
Wentw. PI. 159 ; 3 Chitty, PI. 598. 

NE UNQUES SON RECEIVER. Thename 
of a plea in an action of account-render, by 
which the defendant affirms that he never 



NB UNQUES SON RECEIVER 2308 



NEC NON 



was receiver of the plaintiff. 12 Viner, Abr. 
183. 

NE VARIETUR (Lat. that it be not chang- 
ed). A form sometimes written by notaries 
public upon bills or notes, for the purpose 
of identifying them. This does not destroy 
their negotiability. Fleckner v. Bank, 8 
Wheat. (U. S.) 338, 5,L. Ed. 631. 

NEAP TIDES. Those tides which happen 
between the full and change of the moon, 
twice in every twenty-four hours. Tesche- 
macher v. Thompson, 18 Cal. 21, 79 Am. Dec. 
151. 

NEAR. Close or at no great distance. 
Ward V. R. Co., 109 N. C. 358, 13 S. E. 926. 
Near is a relative term, and its precise 
meaning depends upon circumstances; Bar- 
rett V. Schuyler Co. Ct., 44 Mo. 19T ; Ameri- 
can D. &amp; I. Co. V. Trustees, 39 N. J. Eq. 485 ; 
Kirkbride v. Lafayette Co., 108 U. S. 211, 
2 Sup. Ct. 501, 27 L. Ed. 705. 

Two and one half miles was held to be 
near ; Barrett v. Schuyler Co. Ct., 44 Mo. 197. 

NEAREST. Not necessarily nearest by 
geographical measurement, but by conven- 
iences of access, having regard to the usual 
travelled route. Shaw v. Cade, 54 Tex. 307. 
See Mileage. 

NEAT. See Net. 

NEAT CATTLE. Oxen or heifers. Whart. 
Diet. "Beeves" may include neat stock, but 
all neat stock are not beeves; Castello v. 
State, 36 Tex. 324. It Includes a cow. State 
V. Crow, 107 Mo. 341, 17 S. W. 745. 

NEAT LAND. Land let out to the yeo- 
manry. Cowell. 

NEATNESS. In Pleading. The statement 
in apt and appropriate words of all the nec- 
essary facts and no more. Lawes, Plead. 62. 

NEBRASKA. One of the states of the 
American Union, being the thirty-seventh ad- 
mitted to the Union. 

Its territory formed a part of the province of Lou- 
isiana as ceded by France, and waa afterwards in- 
cluded in the district and tlie territory of Louisiana 
as organized in 1804 and 1805, respectively, and in 
the territory of Missouri, to which the name of the 
last-named territory was changed in 1812. The ter- 
ritory of Nebraska, extending beyond the limits of 
the present state westward to the summit of the 
Eocky Mountains, and northward to the British 
possessions, was organized by the act of May 30, 
1854. An enabling act for the formation of a state 
government was passed April 19, 1864; a state con- 
stitution was adopted June' 21, 1866 ; on the 9th of 
February. 1867, an act was passed for the admission 
of the state into the Union, on condition that civil 
rights and the elective franchise should be secured 
to all races, excepting Indians not taxed ; and on 
the first of March, 1867, a proclamation by the pres- 
ident announced the acceptance of this condition, 
whereupon by the terms of the act the admission 
of the state became complete. The present consti- 
tution was adopted October 12, 1876. 

There was an amendment in 1912, providing for 
initiative and referendum. 

NEC NON. A clause so called which was 
used as a fiction to give jurisdiction to the 



common pleas In connection with the writ of 
guare clausum f regit. 1 Holds w. Hist. E. L. 
89, note. See Bill of Middlesex. 

NECESSARIES. Such things as are prop- 
er and requisite for the sustenance of man, 
including food, clothing, medicine, and habi- 
tation. Bergh v. Warner, 47 Minn. 250, 50 
N. W. 77, 28 Am. St. Rep. 362. 

The term necessaries is not confined mere- 
ly to what is requisite barely to support life, 
but includes many of the conveniences of re- 
fined society. It is a relative term, which 
must be applied to the circumstances and 
conditions of the parties; Add- Contr. 382; 
Cunningham v. Irwin, 7 S. &amp; R. (Pa.) 247, 

10 Am. Dec. 458. Ornaments and superflui- 
ties of dress, such as are usually suitable to 
the party's rank and situation in life; 7 C. 
&amp; P. 52 ; 8 Term 578 ; Bergh v. Warner, 47 
Minn. 250, 50 N. W. 77, 28 Am. St Rep. 362 ; 
Neasham v. McNair, 103 la. 695, 72 N. W. 
773, 38 L. R. A. 847, 64 Am. St. Rep. 202 (a 
diamond shirt stud for the husband) ; some 
degree of education ; 4 M. &amp; W. 727 ; Middle- 
bury College V. Chandler, 16 Vt. 683, 42 Am. 
Dec. 537 (but not a set of Stoddard's Lec- 
tures; Shuman v. Steinel, 129 Wis. 422, 109 
N. W. 74, 7 L. R. A. [N. S.] 1048, 116 Am. 
St. Rep. 961, 9 Ann. Cas. 1064) ; lodging and 
house-rent; 1 B. &amp; P. 340; see Tupper v. 
Cadwell, 12 Mete. (Mass.) 559, 46 Am. Dec. 
704; 5 Q. B. 606; a board bill; Kilgore v. 
Rich, 83 Me. 305, 22 Atl. 176, 12 L. R. A. 859, 
23 Am. St. Rep. 780; board and lodging; Ed- 
mlnston v. Smith, 13 Idaho, 645, 92 Pac. 
842, 14 L. R. A. (N. S.) 871, 121 Am. St. 
Rep. 294; pew rent; Sfc John's Parish v. 
Bronson, 40 Conn. 75, 16 Am. Rep. 17; hors- 
es, saddles, bridles, liquors, pistols; Beeler 
v. Young, 1 Bibb (Ky.) 519. An infant is 
not liable on a contract for the erection of a 
dwelling house; Allen v. Lardner, 78 Hun 
(N. T.) 603, 29 N. Y. Supp. 213.. A racing 
blcyple was held a necessary for an appren- 
tice earning 21s. a week and living with his 
parents ; 78 L. T. 296. Jewelry purchased by 
an infant as a present for a young lady to 
whom he was engaged without the consent 
of his guardian was held not a necessary; 
Hewlings v. Graham, 84 L. T. Rep. 496. 
Whether articles of a certain kind or certain 
subjects of expenditure are or are not such 
necessaries as an infant may contract for, is 
a matter of law; but the question whether 
any particular things come under these class- 
es, and the question, also, as to quantity, 
are generally matters for the jury to deter- 
mine; Tupper V. Cadwell, 12 Mete. (Mass.) 
559, 46 Am. Dec. 704; Phelps v. Worcester, 

11 N. H. 51; 6 M. &amp; W. 42; 6 O. &amp; P. 690; 
Ans. Contr. 113; Poll. Contr. 67. 

Infants, when not maintained by parent 
or guardian, may contract for necessaries; 
4 M. &amp; W. 727 ; Perrln v. Wilson, 10 Mo. 451 ; 
Wailing y. Toll, 9 Johns. (N. Y.) 141 ; Gen- 



NECESSARIES 



2309 



NECESSARIES 



ereux v. SlWey, 18 R. I. 43, 25 Atl. 345. 
But when living with and supported by their 
parents they are not liable for necessaries; 
Gay V. Ballou, 4 Wend. (N. T.) 403, 21 Am. 
Dec. 158; McKanna v. Merry, 61 111. 177; 
Tharp v. Connelly, 48 Mo. App. 59; Ewell, 
Lead.'Cas. 55. Nor can an infant pledge his 
father's credit, as a wife can her husband's, 
on abandonment of duty; Gordon v. Potter, 
17 Vt. 348; 6 M. &amp; W. 482; Schoul. Dom. Rel. 
328. Infants are not liable at law for bor- 
rowed money, though expended for necessa- 
ries; Beeler v. Young, 1 Bibb (Ky.) 519; 
Walker v. Simpson, 7 W. &amp; S. (Pa.) 83, 42 
Am. Dec. 216; Bent v. Manning, 10 Vt 225. 
See 1 P. Wms. 558 ; Conn v. Coburn, 7 N. H. 
368, 26 Am. Dec. 746 ; N. H. Mut. F. Ins. Co. 
V. Noyes, 32 N. H. 345. Otherwise in equity ; 
1 P. Wms. 558; Watson v. Cross, 2 Duvall 
(Ky.) 149; Walker v. Simpson, 7 W. &amp; S. 
(Pa.) 83, 42 Am. Dec. 216. But they are 
liable for money advanced at their request 
to a third party to pay for necessaries ; Swift 
V. Bennett, 10 Gush. (Mass.) 436; Conn v. 
Coburn, 7 N. H. 368, 26 Am. Dec. 746; Kll- 
gore V. Rich, 83 Me. 305, 22 Atl. 176, 12 L. 
R. A. 859, 23 Am. St. Rep. 780. An infant Is 
not liable upon a bill of exchange at the 
suit of an Indorsee of the bill, although it 
was accepted for the price of necessaries; 
[1891] 1 Q. B. 413; held eontra on a note; 
Melton V. Katzensteln (Tex.) 49 S. W. 173. 
See 35 Centr. L. J. 203. 

Services rendered by an attorney to an 
infant In examining the public records and 
advising him as to his rights to certain prop- 
erty are not necessaries ; Cobbey v. Buchan- 
an, 48 Neb. 391, 67 N. W. 176. Necessaries 
for the infant's vrtfe and children are neces- 
saries for himself ; Stra. 168 ; Com. Dig. JSn- 
font (B 5) ; Beeler v. Young, 1 Bibb (Ky.) 
519; Angel v. McLellan, 16 Mass. 31, 8 Am. 
Dec. 118; Sams v. Stockton, 14 B. Monr. 
(Ky.) 232. 

The obligation must be repudiated upon 
coming of age, or the person is bound ; [1899] 
2 Ch. 569. An infant's obligation to pay for 
necessaries is not created by agreement, but 
imposed by law; Pollock, Contr. 57, citing 
[1908] 2 K. B. 1. 

See Infant. 

When a wife is living with her husband, 
it is presumed that she has his assent to 
pledge his credit for necessaries. See Baker 
V. Carter, 83 Me. 132, 21 Atl. 834, 23 Am. 
St. Bep. 764; O'Malley v. Ruddy, 79 Wis. 
147, 48 N. W. 116, 24 Am. St. Bep. 702. But 
this presumption may be rebutted by show- 
ing a prohibition on his part or that he has 
already supplied her with necessaries ; Allen 
V. Bidder, 41 Pa. Super. Ct. 534, where it 
was held, if the husband makes a proper 
provision for the wife, he is not liable. 

The fact of cohabitation is not conclusive 
of the husband's assent ; 2 Ld. Raym. 1006 ; 
Tebbets v. Hapgood, 34 N. H. 420; . Keller v. 



Phillips, 39 N. Y. 351 ; Schoul. Dom. Rel. 80. 
But if the husband altogether neglects to 
supply the wife, she may pledge his credit 
notwithstanding he has forbidden trades- 
men to trust her; the law here raising a 
presumption of agency to enforce the mari- 
tal obligation and protect the wife ; Shelton 
V. Hoadley, 15 Conn. 535; Bloomingdale v. 
Brinckerhoff, 2 Misc. 49, 20 N. Y. Supp. 858. 
A wife is ordinarily authorized to pvu-chase 
clothing on the husband's credit only in case 
of necessity, and where the wife has habit- 
ually clothed herself out of hjar separate In- 
come which is adequate for that purpose, the 
husband is not liable for clothing ordered 
by her ; Dolan v. Brooks, 168 Mass. 350, 47 
N. E. 408; Eaynes v. Bennett, 114 Mass. 424. 

It was held in Llewellyn v. Levy, 163 Pa. 
647, 30 Atl. 292, that when a wife refused to 
accept an allowance of $125 a month offered 
by the husband whose income was $20,000, 
she could still charge him with necessaries ; 
it also appeared there that the plalntifE had 
previously sold the wife like articles which 
had been paid for by the husband, and that 
the plaintiff did not know of the separation; 
but the first point above mentioned appears 
to have been ruled by the court Under the 
Pennsylvania married woman's act, the 
wife's estate is liable for necessaries fur- 
nished to her during her lifetime, though 
the husband is primarily liable and could be 
called upon to reimburse her estate; In re 
Weber's Estate, 20 Phila. (Pa.) 8. 

The husband is also liable when away 
from his wife without her fault or by his 
own misconduct; Wray v. Cox, 24 Ala. 337; 

2 Kent 146 ; Seybold v. Morgan, 43 111. App. 
39. In order to charge a husband with nec- 
essaries sold to his wife. It must affirmative- 
ly appear that the goods were sold on the 
husband's credit; Ehrich v. Bucki, 7 Misc. 
(N. Y.) 118, 27 N. Y. Supp. 247. But other- 
wise where it- is the wife's fault ; Evans v. 
Fisher, 5 Oilman (111.) 569; Allen v. Aid- 
rich, 29 N. H. 63; Sturtevant v. Starin, 19 
Wis. 268. But if the wife elopes, though it 
be not with an adulterer, he is not charge- 
able even for necessaries; the very fact of 
the elopement and separation is sufficient to 
put persons on inquiry, and whoever gives 
credit to the wife afterwards gives it at his 
peril ; McCutchen v. McGahay, 11 Johns. (N. 
Y.) 281, 6 Am. Dec. 373; Hunter v. Boucher, 

3 Pick. (Mass.) 289; 2 Kent 123; Bacon, 
Abr,. Baron and Feme (H) ; 1 Hare &amp; W. 
Sel. Dec. 104, 106 ; 6 C. B. N. S. 519; Sturte- 
vant V. Starin, 19 Wis. 268. 

A husband Is liable for groceries purchas- 
ed for the family by his wife; Bradt v. ShuU, 
46 App. Div. 347, 61 N. Y. Supp. 484 ; prima- 
rily for wages of a servant; Hackman v. 
Cedar, 13 Ohio Cir. Ct. R. 618; Woods v. 
Kauffman, 115 Mo. App. 398, 91 S. W. 399; 
for the tuition of a daughter in a commer- 
cial school; Haas v. Bank, 42 Tex. Civ. 
App. 167, 94 S. W. 439; for medical at- 



NECESSARIES 



2310 



NECESSARY 



tendance for a wife; Carpenter v. Hazelrigg, 
103 Ky. 538, 45 S. W. 666 ; though she prom- 
ised to pay for the same out of her separate 
estate; Thomas v. Passage, 54 Ind. 106. 

A statute making a married woman liable 
to a suit in connection with her separate 
property or business does not remove the 
common law disability rendering her liable 
for the services of a physician contracted 
by her for herself and .family, since such 
contract does not relate to her separate prop- 
erty or business ; Stack v. Padden, 111 Wis. 
42, 86 N. W. 568. 

In the absence of special agreement or 
provision, the separate estate of a deceased 
wife is not liable for her doctor's bills to 
the estate of her husband, who died after 
her, having paid such bills; they were neces- 
saries supplied to her while living with him, 
for which he is liable; In re StadtmuUer, 
110 App. D-iv. 76, 96 N. Y. Supp. 1101. 

Insane persons are liable for necessaries; 
5 B. &amp; 0. 170; Kendall v. May, 10 Allen 
(Mass.) 59; Sawyer v. Lufkin, 56 Me. 308. 

See Mabbied Woman. 

NECESSARY. Reasonably convenient. 
Alabama &amp; V. Ry. Co. v. Odeneal, 73 Miss. 
34, 19 South. 202. 

This word has great flexibility of mean- 
ing. It is used to express mere convenience, 
or that which is indispensable to the ac- 
complishment of a purpose, St. Louis, J. &amp; 
,0. R. Co. V. Trustees, 43 111. 307. It fre- 
quently imports no more than that one thing 
is convenient, or useful, or essential to an- 
other; McCulloch V. Maryland, 4 Wheat. (U. 
S.) 414, 4 L. Ed. 579. 

As used in a code exempting the wages 
of a laboring man when necessary for the 
support of his farmly in whole or in part, 
it does not mean that his wages must be 
absolutely indispensable to the bare sub- 
sistence of the family and that the family 
could not live without them, but is used in 
a broader and less rigid sense looking rather 
to the comfort and well being of the fam- 
ily, and contemplates the furnishing to it 
whatever is necessary to its comfort and 
well-being as distinguished from luxuries. 
Gushing v, Quigley, 11 Mont 577, 29 Pac. 
337. 

Witness fees are not necessary disburse- 
ments where witnesses were not called at 
the trial, unless the party shows why he 
did not call them; Kohn v. R. Co., 8 Misc. 
421, 28 N. Y. Supp. 663. 

Necessary material for the construction 
of a railroad includes the railroad as a 
completed structure, station buildings, de- 
pots, machine shops, side tracks, turn outs, 
and water tanks. U. S. v. R. Co., 150 U. S. 
1, 14 Sup. Ct. 11, 37 L. Ed. 975. 

Necessary help. A physician may be ap- 
pointed by a warden of a state prison under 
authority to appoint all necessary help. 
State V. Hobart, 13 Nev. 419. 



Necessary implication. In construing a 
vtIU, not a natural necessity,, but so strong 
a probability that a contrary construction 
cannot be supported. 1 V. &amp; B. 466. 

See Eminent Domain. 

NECESSITOUS CIRCUMSTANCES. In 

the civil code of Louisiana the words are 
used relative to the fortune of the deceased 
and to the condition in which the claimant 
lived during the marriage. Smith v. Smith, 
43 La. Ann.' 1140, 10 South. 248. 

NECESSITY. That which makes the con- 
trary of a thing impossible. 

Necessity is of three sorts: of conserva- 
tion of life ; see Dueess ; of obedience, as 
the obligation of civil subjection, and, in 
some cases, the coercion of a wife by her 
husband; and necessity of the act of God, 
or of a stranger. Jacob. 

Whatever is done through necessity is 
done without any intention; and as. the 
act is done without will (g. v.) and is com- 
pulsory, the agent is not legally responsible ; 
Whart Cr. I* § 95; Bacon, Max. Reg. 5. 
Hence the maxim. Necessity has no law; 
indeed, necessity Is itself a law which can- 
not be avoided nor infringed. Clef des Lois 
Rom.; Dig. 10. 3. 10. 1 ; Comyns, Dig. Plead- 
er (3 M 20, 3 M 30). As to the circum- 
stances which constitute necessity, see 1 
Russ. Cr. 16, 20; Morris v. State, 31 Ind. 
189; Flagg v. Millbury, 4 Cush. {Mass.) 243. 

Either public officers or private persons 
may raze houses to prevent the spreading of 
a conflagration. But this right rests on pub- 
lic necessity, and no one is bound to com- 
pensate for or to contribute to the loss, un- 
less the town or neighborhood. Is made lia- 
ble by express statute; Ralli v. -Troop, 157 
U. S. 405, 15 Sup. Ct. 657, 39 L. Ed. 742, 
citing 2 Kent 338; Bowditch v. Boston, 101 
U. S. 16, 25 L. Ed. 980; The James P. Don- 
aldson, 19 Fed. 269. See Eminent Domaik; 

FiBES. 

In 12 Rep. 63, it was held that in a tem- 
pest, and to save the Uves of the passengers, 
a passenger might cast out ponderous and 
valuable goods, without making himself lia- 
ble to an action by their owner, cited In RalU 
V. Troop, 157 U. S. 405, 15 Sup. Ct 657, 39 
L. Ed. 742. Where a person goes to the house 
of another to buy cattle and there becomes 
ill and is turned out In the cold and injured 
thereby, it is an actionable breach of the 
duty to care for him in his necessity; Depue 
V. Flatau, 100 Minn. 299, 111 N. W. 1, 8 L. R. 
A. (N. S.) 485. 

To justify a trespass by a tenant on the 
ground that his intervention was necessary 
in order to prevent destruction of property 
(here a heath fire on land leased for shoot- 
ing), it is sufficient to show that the Intervrai- 
tion was, in the circumstances at the time it 
took place, reasonably necessary; 81 L. J. 
K. B. 346. 



NECESSITY 



2311 



NEGATIVE 



The law of necessity (jus necessitatis) is 
the right of a man to do that from which 
he cannot be dissuaded by any terror of le- 
gal punishment. The test of necessity is the 
powerlessness of any possible, not that of 
any reasonable, punishment. Only the most 
limited scope can be given to the jus neces- 
sitatis; it Is acknowledged as a reason for 
the reduction of the penalty, even to a nomi- 
nal amount, but not for its total remission. 
Salmond, Jurisprudence 429. See 2 Stephen, 
Hist. Or. L. ch. 18; 1 L. Q. K. 51. 

In the German Criminal Code, p. 51, the 
doctrine receives express recognition. See 
Eminent Domain; Fires. 

As to the meaning of the word under Sun- 
day laws, see Sunday. 

NECK-VERSE. The Latin sentence Mis- 
erere mei, Deus, Ps. 11. 1, because the read- 
ing of it was made a test for those who 
claimed benefit of clergy {q. v.). 

If a monk had been taken 

For stealing of bacon. 
For burglary, murder, or rape; 

If lie could but rehearse 

(Well prompt) his nech-verse, 
He never could tail to escape. 

Brit. Apollo 1710; Whart. Diet. 

NEEDLESSLY. In a statute with refer- 
ence to the needless killing or bad treatment 
of animals, it denotes an act done without 
any useful motive, in a spirit of wanton 
cruelty, or for the mere pleasure of destruc- 
tion. Hunt V. State, 3 Ind. App. 383, 29 N. 
B. 933 ; Grise v. State, 37 Ark. 460 ; State v. 
Bogardus, 4 Mo. App. 215. 

'NEFAS^ That which is against right or 
divine law; a wicked thing or act. Calv. 
Lex. ■* 

NEGATIVE. Negative propositions are 
usually much more difficult of proof than 
affirmative, and in cases where they are in- 
volved, it is often a nice question upon which 
side lies the burden of proof. The general 
rule has been thus stated : Whoever asserts 
a right dependent for Its existence upon a 
negative, must establish the truth of the 
negative, except where the matter is pecul- 
iarly within the knowledge of the adverse 
party. Otherwise rights of which a negative 
forms an essential element may be enforced 
without proof; Goodwin v. Smith, 72 Ind. 
113, 37 Am. Eep. 144; Hale v. Smith, 78 N. 
T. 480. Thus in actions for malicious prose- 
cution, the plaintife must prove that there 
was no probable cause; Carey v. Sheets, 67 
Ind. 375 ; 2 Greenl. Ev. § 454. The rule ap- 
plies whenever the claim is founded in a 
breach of duty in not repairing highways, 
and in cases of mutual negligence; Hale v. 
Smith, 78 N. Y. 480; Shearm. &amp; Red. Neg. 
312. So one must prove the allegation that 
a negotiable promissory note was not taken 
in payment of i debt; Smith v. Bettger, 68 
Ind. 254, 34 Am.. Hep. 256. So the Ofms is 
on a plaintifE who assigns as a breach by 



tenant that he did not repair ; 9 0. &amp; P. 734 ; 
6 H. L. C. 672. In all actions for breach of 
warranty of the soundness of a personal 
chattel, the plaintifC must prove the negative. 
"It may be stated as a test admitting of uni- 
versal application, that whether the proposi- 
tion be affirmative or negative, the party 
against whom judgment would be given, as 
to a particular issue, supposing no proof to 
be offered on either side, has on him, wheth- 
er he be plaintifC or defendant, the burden 
of proof which he must satisfactorily sus- 
tain." 1 Whart. Bv. § 357; see 14 M. &amp; W. 
95 ; Heinemann v. Heard, 62 N. Y. 448 ; Malt- 
man V. WiUiamson, 69 111. 423 ; Colorado C. &amp; 
I. Co. V. U. S., 123 U. S. 317, 8 Sup. Ct. 131, 
31 L. Ed. 182. 

NEGATIVE AVERMENT. In Pleading. 
An averment in some of the pleadings in a 
case in which a negative is asserted.' 

NEGATIVE CONDITION. One where the 
thing which is the subject of it must not 
happen. 1 Bouvier, Inst. n. 751. See Posi- 
tive Condition. • 



NEGATIVE COVENANT. 
NEGATIVE EASEIVIENT. 



See Covenant. 

See Easement. 



NEGATIVE PREGNANT. In Pleading. 

Such a form of negative expression as may 
imply or carry within it an affirmative. 
Fields V. State, 134 Ind. 46, 32 N. E. 780. 

Thus, where a defendant pleaded a license 
from the plaintiff's daughter, and the plain- 
tiff rejoined that he did not enter by her 
license, the rejoinder was objected to suc- 
cessfully as a negative pregnant; Cro. Jac. 
87. The fault here lies in the ambiguity of 
the rejoinder, since it does not appear 
whether the plaintifC denies that the license 
was given or that the defendant entered by 
the license; Steph. Pl. 381. 

This ambiguity constitutes the fault ; Hob. 
295; which, however, does not appear to be 
of much account in modern pleading; Com. 
Dig. Pleader (R 6) ; Gould, PI. c. 6, % 36. 

A special denial in the words of the allega- 
tion denied is a mere negative pregnant and 
a motion to make more definite and certain 
will lie ; Moody v. Belden, 60 Hun 582, 15 N. 
T. Supp. 119. A mere denial in the language 
of the complaint, that a partial payment was 
made on a spedfled day, is an admission that 
the payment was made on some other day; 
Argard v. Parker, 81 Wis. 581, 51 N. W. 1012. 

A negative pregnant is not a good plea; 
U. S. V. Larkin, 153 Fed. 113, 82 C. O. A. 247. 

NEGATIVE STATUTE. One which is en- 
acted in negative terms, and which so con- 
trols the common law that it has no force 
in opposition' to the statute. Bac. Abr. Stat- 
utes (G) ; Brook, Abr. Parliament, pl. 72; 
Bish. Writ. L. § 153. 



NEGGILDARE. 

L. Diet 



To claim kindred. Jac. 



NEGLECT 



2312 



NE&amp;LIGENCE 



NEGLECT. To omit, as to neglect busi- 
ness, or payment, or duty, or work. It does 
not generally imply carelessness or impru- 
dence, but simply an omission to do or per- 
form some work, duty, or act. Rosenplaen- 
ter V. Roessle, 54 N. Y. 262. See Negligence. 

NEGLIGENCE. The omission to do some- 
tMng which a reasonable man, guided by 
those considerations which ordinarily regu- 
late the conduct of human affairs, would do, 
or the doing something which a prudent and 
reasonable man would not do. 11 Ex. 784. 
See Webb, Poll. Torts 537. The standard is 
not that of a particular man, but of the 
average prudent man; 3 Bing. N. C. 468. _ 

The failure to observe, for the protection 
of the interests of another person, that de- 
gree of care, precaution, and vigilance which 
the circumstances justly demand, whereby 
such other person suffers injury; Cooley, 
Torts 630; Barrett v. Southern Pac. Co., 91 
Cal. 296, 27 Pac. 666, 25 Am. St. Rep. 186. 

The absence of care according to circum- 
stances. See Philadelphia, W. &amp; B. R. Co. v. 
Stinger, 78 Pa. 219 ; Texas &amp; P. Ry. Co. v. 
Murphy, 46 Tex. 356, 26 Am. Rep. 272; 
Blaine v. R. Co., 9 W. Va. 252. 

Such an omission by a reasonable person, 
to use that degree of care, diligence, and 
skill which it was his legal duty to use for 
the protection of another person from injury 
as, in a natural and continuous sequence, 
causes unintended injury to the latter. 
Bucki v. Cone, 25 Fla. 1, 6 South. 160. 

The failure to do what a reasonable and 
prudent person would ordinarily have done 
under the circumstances of the situation, or 
the doing what such a person under the 
existing circumstances would not have done. 
Baltimore &amp; P. R. Co. v. Jones, 95 XJ. S. 441, 
24 L. Ed. 506. 

Negligence, In Its civil relation, is such an 
inadvertent imperfection, by a responsible 
human agent, in the discharge of a legal du- 
ty, iis immediately produces, in an ordinary 
and natural sequence, a damage to another. 
Whart Negl. § 3. It is conceded by all the 
authorities that the standard by which to de- 
termine whether a person has been guilty of 
negligence is the conduct of the prudent or 
careful or diligent man. Bigelow, Torts 261 ; 
Needham v. R. Co., 85 Ky. 423, 3 S. W. 797, 
11 S. W. 306 ; Chicago &amp; A. R. Co. v. Adler, 
129 111. 835, 21 N. B. 846 ; Louisville &amp; N. R. 
Co. V. Gower, 85 Tenn. 465, S S. W. 824. 

The opposite of care and prudence, the 
omission to use the means reasonably neces- 
sary to avoid injury to others. Great W. R. 
Co. V. Haworth, 39 111. 353. Opposed to dili- 
gence or carefulness. Smith v. Whittier, 95 
Cal. 279, 30 Pac. 529. 

The result of a failure to perform a duty ; 
Toncray v. Dodge County, 33 Neb. 802, 51 
N. W. 235. It implies a duty as well as its 
breach, and the fact can never be found in 
the absence of a duty; Little Rock &amp; Ft. S. 



Ry. Co. y. Lawton, 55 Ark. 428, 18 S. W. 543, 
15 L. R. A. 434, 29 Am. St. Rep. 48. 

When a contract creates a duty, the neg- 
lect to perform that duty, as well as the 
negligent performance of it, is a ground of 
action for tort. Hence it is at the election 
of the party injured to sue either on the 
contract or on the tort ; Robinson v. Thread- 
gill, 35 N. C. 39; but there must be privity 
of contract between the parties, therefore 
an attorney who made a mistake in drawing 
a will is not liable to a person who, by the 
mistake, is deprived of a gift intended for 
him by the testator; Buckley v. Gray, 110 
Cal. 339, 42 Pac. 900, 31 L. R. A. 862, 52 Am. 
St. Rep. 88. 

It is not a thing but a relation. It implies 
a duty to use diligence, and such a duty may 
be owed to one person and not to another; 
Boston M. R. Co. v. Sargent, 72 N. H. 455, 
57 Atl. 688. There must be shown to exist 
some obligation or duty towards the plaintiff 
which the defendant has left undischarged 
or unfulfilled; Sweeney v. R. Co., 10 Allen 
(Mass.) 368, 87 Am. Dec. 644. 

Due care is such attention and effort ap- 
plied to a given case as the ordinary prudent 
man would put forth under the same circum- 
stances ; this rule seems to meet the demands 
of every conceivable case. The general duty 
of diligence includes the particular duty of 
competence where the matter in hand re- 
quires more knowledge or ability than any 
prudent man may be expected to have. If, in 
an emergency and to avoid imminent risk, the 
conduct of something generally intrusted to 
skilled persons, is taken by an unskilled per- 
son, no more is required of him than to 
make a prudent and reasonable use of such 
skill as he actually has; McNevins v. IiOwe, 
40 111. 209. 

It is said that liability for negligence de- 
pends on the probability of the consequences, 
i. e. its capability of being foreseen by a rea- 
sonable man ; Poll. Torts 37. 

A person is expected to anticipate and 
guard against all reasonable consequences, 
but not against that which no reasonable 
man would expect to occur. See 5 Ex. 248. 
Some cases have gone to the extent of main- 
taining an action in tort even where no at- 
tempt has been made to perform a contract ; 
Robinson v. ThreadgUl, 35 N. U. 39; 11 CI. 
&amp; F. 1. 

It is said not to be essential to constitute 
negligence that the damage caused might 
reasonably have been expected from the neg- 
ligent act; Whart. Negl. § 16. Thus Gray, C. 
J., says, in Higgins v. Dewey, 107 Mass. 494, 
9 Am. Rep. 63: "A man who negligently 
sets fire on his own land and keeps it negli- 
gently, is Uable to an action at common law 
for any injury done by the spreading or com- 
munication of the fire directly from his own 
land to the property of another, whether 
through the air or along the ground, and 
whether he might or might not have reason- 



NEGLIGENCE 



2313 



NEGLIGENCE 



ably anticipated the particular manner in 
which it was communicated." And in L. K. 
6 C. P. 14, where a railway company left a 
pile of rubbisn in hot weather by the side of 
their track, and the pile was Ignited by 
sparks from an engine, and the fire crossed 
a field and burned the plaintiff's cottage, 
Channell, B., said : "When there is no direct 
evidence of negligence, the question what a 
reasonable man might foresee is of impor- 
tance in considering the question whether 
there is evidence for the jury of negligence 
or not, . . . but when it has been once 
determined that there has been evidence of 
negligence, the person guilty of it is equally 
liable for its consequences, whether he could 
have foreseen them or not." 

Where a person unlawfully injures anoth- 
er, he is liable in damages, without regard to 
the intention with which the act was done; 
Bruch V. Carter, 32 N. J. L. 554; Gate v. 
Gate, 44 N. H. 211; and good faith does not 
excuse negligence ; Lincoln v. . Buckmaster, 
32 Vt. 652. As to the right of action for neg- 
ligence resulting in the death of the Injured 
person, see Actio Personalis Mobitue Ctjm 
Pebsona; Death. 

The damage caused must arise from inad- 
vertence. If it be intentional, a suit for neg- 
ligence will not lie; the remedy is in tres- 
pass and not case. 

One negligent person cannot escape liabili- 
ty for his negligence because the negligence 
of another concurred in producing the inju- 
ry ; Jx)uisville, N. A; &amp; C. R. Co. v. Lucas, 
119 Ind. 583, 21 N. E. 968, 6 L. R. A. 193. 

Whether negligence is divisible into de- 
grees, corresponding to degrees of care in- 
cumbent on the defendant, is a question 
which has elicited much discussion and a 
great variety of opinions. Speaking broadly, 
the various theories may be reduced to three 
classes : 

First, that there are three degrees of care 
required by the law, slight, ordinary and 
great; and consequently there are three de- 
grees of negligence: gross, the failure to 
exercise ordinary care, and slight, or the 
failure to exercise great care; Redington v. 
Tel. Cable Co., 107 Cal. 317, 40 Pac. 432, 48 
Am. St. Rep. 132 ; Chicago, B. &amp; Q. R. Co. v. 
Johnson, 103 111. 512; First N. Bk. v. Gra- 
ham, 85 Pa. 91, 27 Am. Rep. 628; I. &amp; G. N. 
R. Co. V. Cocke, 64 Tex. 151; Sullivan v. 
Electric Light Co., 181 Mass. 294, 63 N. B. 
904; Davis v. Ry. Co., 63 S. C. 370, 41 S. E. 
468. 

Second, that but two degrees of care are 
required; the care ordinarily exercised by a 
specialist in the matter In handj and the 
care ordinarily exercised by a non-spedalist 
in the same matter. A failure to exercise 
the former of these degrees of care is termed 
ordinary negligence, while a failure to ex- 
ercise the latter kind of care is termed slight 
negligence; Wharton, Neg. 636. 

Third, that there are no degrees of care j 



or of negligence; that negligence Is In all 
cases the same thing, namely, the absence of 
due care. According to this view, it is in 
each case practically a question of fact for 
the jury whether the proper degree of care 
has been taken, the jury being guided by a 
consideration of what a reasonable and pru- 
dent man would have done, under the circum- 
stances; 11 M. &amp; W. 115; The New World 
V. King, 16 How. (U. S.) 469, 14 L. Ed. 1019; 
New York C. B. Co. v. Lockwood, 17 Wall. 
(U. S.) 357, 21 L. Ed. 627; Purple v. R. Co., 
114 Fed. 123, 51 0. C. A. 564,' 57 L. R. A. 
700; Culbertson v. Holliday, 50 Neb. 229, 
69 N. W. 853. 

Where one is liable only In case of gross 
negligence, the slightest care is enough, or 
as a degree of negligence, it is falling much 
below the average standard; Brennan v. 
Oil Co., 187 Mass. 376, 73 N. E. 472. 

It is said that there should be no degrees 
of negligence or care, but that the rule 
should be such care as an average, ordinary 
prudent man would exercise under the cir- 
cumstances. So one would fall short of 
average prudence in trying to set a leg 
which could only be done by professional 
skill, and so it is negligence for a layman 
to try it, given a situation that any prudent 
man knew required special knowledge. 
These rules would be relaxed in extreme, ex- 
traordinary cases, as well as cases of neces- 
sity; Pollock, Torts 220. In dealing with 
prudence we always have to consider the ad- 
vance of the science, learning and the partic- 
ular locality, etc., and these incidents are 
the circumstances spoken of in the test; Mc- 
Candless v. McWha, 2-J Pa. 261. 

"The tendency of modem judicial opinion 
is adverse to the distinction between gross 
and ordinary negUgence;" Bradley, J., in 
New York C. R. Co. v. Lockwood, 17 Wall. 
(U. S.) 357, 382, 21 L. Ed. 627; and the 
measure of duty owed by persons in the dis- 
charge of their mutual relations is better 
expressed by the use of the term negligence 
as a negative definition, or due, reasonable 
or ordinary care; Raymond v. R. Co., 100 
Me. 529, 62 Atl. 602, 3 L. R. A. (N. S.) 94. 

No distinction between the degrees of neg- 
ligence can be made so as to avoid the effect 
of a contract made by a Pullman porter re- 
leasing a railroad from liability for negli- 
gent injuries; Chicago, R. I. &amp; P. R. Co. v. 
Hamler, 215 111. 525, 74 N. E. 705, 1 L. R. A. 
(N. S.) 674, 106 Am. St. Rep. 187, 3' Ann. 
Cas. 42 ; and injuries caused by gross neg- 
ligence are included in a release which 
speaks only of "negligence"; id. 

Proof of negUgence. The first requisite 
for the plaintiff is to show the existence of 
the duty which he alleges has not been per- 
formed, and then he must show a failure 
to observe this duty; that is, he must es- 
tablish negligence on the defendant's part. 
This is an affirmative fact, the presump- 
tion always being, until the contrary ap- 



NEGLIGENCE 



2314 



NEGLIGENCE 



pears, that every man will perform his duty ; 
Cooley, Torts 659. It is not sufficient for the 
plaintiff to prove a state of facts consistent 
with the accident having been caused either 
by the negligence of the defendant or by 
that of the person injured. He must prove 
that It was caused by the defendant; 12 
App. Cas. 41. 

The litigant who bases his case or his 
defence upon negligence is bound to prove 
that his opponent was negligent. The pre- 
sumption of law is that every person per- 
forms his legal duty; Huff v. Austin, 46 
Ohio St 386. Accordingly, the burden of 
proving negligence, in any litigation, rests 
throughout the case on the party asserting 
it, although, as in other cases, the burden 
of giving evidence may' shift from one side 
to the other, during the progress of the trial. 
The same evidence may or may not estab- 
lish a prima fade case of negligence on the 
part of the defendant, according as it shows 
a breach of contract on defendant's part; 
Stokes V. Saltonstall, 13 Pet. (U. S.) 181, 10 
L. Ed. 115; as where a railroad train is 
suddenly jolted ; Piehl v. Ky., 162 N. Y. 617, 
57 N. E. 1122; or a steamship is driven with 
extraordinary force against a wharf; In- 
land &amp; S. C. Co. V. Tolson, 139 U. S. 551, 11 
Sup. Ct 653, 35 L. Ed. 270; or a train is 
derailed by obstacles on the track, or by de- 
fective rails or defective rolling stock; New 
Jersey R. Co. v. Pollard, 22 Wall. (U. S.) 
341, 22 L. Ed. 877; and a passenger is in- 
jured; in 'such cases the accident itself af- 
fords prima facie evidence of the carrier's 
negligence, for he contracted to carry the 
passenger safely. Had a servant of the car- 
rier been injured in the same accident, a 
different rule would have obtained, for the 
employs would be bound to establish, as an 
affirmative fact, that the employer had been 
guilty of negligence; Patton v. R. Co., 179 
U. S. 658, 21 Sup. Ct. 275, 45 L. Ed. 361. 

One who is killed at a railroad crossing is 
presumed to have done his duty in exercising 
due care and not to have been guilty of con- 
tributory negligence; Hanna v. E. Co., 213 
Pa. 157, 62 Atl. 643, 4 L. R. A, (N. S.) 344; 
and in the absence of evidence to the con- 
trary, a railroad company is also presumed 
to have done its duty and this presumption 
must be overcome before any recovery can 
be had; id. Such presumption is destroyed 
if it appears that if the person killed had 
looked and listened on approaching the 
crossing he would have seen and heard the 
train; Carlson v. R. Co., 96 Minn. 504, 105 
N. W. 555, 4 L. R. A. (N. S.) 349, 113 Am. 
St Rep. 655; or if it is incompatible with 
the conduct of the person to whom it is 
nought to be applied; Wabash R. Co. v. De 
Tar, 141 Fed. 932, 73 C. C. A. 166, 4 L. R. A. 
(N. S.) 352. 

The instinct of self-preservation is not 
.alone sufficient to establish due care; Wright 



V. R. Co., 74 N. H. 128, 65 Atl. 687, 8 L. R. A. 
(N. S.) 832, 124 Am. St Rep. 949; and the 
exercise of due care cannot be sustained by 
mere conjecture and speculation, or by show- 
ing or assuming what men in general would 
have done ; id.; Binewicz v. Haglin, 103 
Minn. 297, 115 N. W. 271, 15 L. R. A. (N. 
S.) 1096, 14 Ann. Cas. 225; contra, Adams v. 
Min. Co., 12 Idaho, 637, 89 Pac. 624, 11 L. 
R. A. (N. S.) 844, where it was held to con- 
stitute prima facte proof of the exercise of 
ordinary care. 

The mere fact that a passenger train 
runs into an open switch and collides with 
cars standing thereon does not raise a pre- 
sumption of gross negligence on the part of 
the carrier In favor of an injured passen- 
ger; Southern R. Co. v. Lee, 101 S. W. 307, 
30 Ky. L. Rep. 1360, 10 L. R. A. (N. S.) 
837. 

There Is no presumption of negligence on 
the part of the defendant for injury caused 
by his horse running away, where the only 
evidence as to the driver was that, when he 
was first seen, he was falling towards the 
ground ; Rowe v. Such, 134 Cal. 573, 66 Pac. 
862, 67 Pac. 760. 

Where there is a requirement for cars to 
"run slow," proof of the violation of such 
requirement by a motqrman directly result- 
ing in an injury to a pedestrian is evidence 
from which the jury may find a street rail- 
way company liable for negligence; Hay- 
ward V. R. Co., 74 N. J. L. 678, 65 Atl. 737, 
8 L. R. A. (N. S.) 1062. 

It is. said that a presumption of negli- 
gence arises from the occurrence of an ac- 
cident in the course of a business, which 
may, according to expert testimony, be safe- 
ly carried on if conducted with due care; 
Judson V. Powder Co., 107 Cal. 549, 40 Pac. 
1020, 29 L. R. A. 718, 48 Am. St Rep. 146. 

In the absence of a contract between the 
parties, the burden of proof of negligence 
is on the plaintiff, and if the "evidence is 
equally consistent with the existence or 
non-existence of negligence, it is not com- 
petent to the judge to leave the matter to 
the jury;" 11 C. B. N. S. 588 ; but the rule 
of the burden of proof is modified when 
there is a relation of contract between the 
parties; Poll. Torts 416; as in cases of com- 
mon-carriers, or where the thing which was 
the cause of the mischief was "under the 
management of the defendant or his serv- 
ants, and the accident was such as in the 
ordinary course of things does not happen, 
if those who have the management use 
proper care;" 3 H. &amp; C. 596. 

In some classes of cases the mere proof 
of the accident constitutes sufficient prim^ 
facie proof of defendant's negligence. See 
Res Ipsa Loquitue. 

As a general rule this liability cannot be 
avoided by stipulation ; thus, a common car- 
rier will not be permitted to contract for 
immunity from the results of its own neg- 



NEGLIGENCE 



2315 



NEGLIGENCE 



Hgence or that of Its agentfs; Graham v. 
Davis, 4 Ohio St. 362, 62 Am. Dec. 285; 
Grogan v. Exp. Co., 114 Pa. 523, 7 Atl. 134, 
60 Am. Rep. 360; Bartlett v. K. Co., 94 
Ind. 281; Railway Co. v. Sowell, 90 Term. 17, 
15 S. W. 837; Erie R. Co. v. Wilcox, 84 111. 
239, 25 Am. Rep. 451 ; School Dist. v. R. Co., 
102 Mass. 552. 3 Am. Rep. 502; Southern 
Pae. R. Co. v. Maddox, 75 Tex. 300, 12 S. W. 
815 ; this may be considered as the rule 
generally followed in this country, in which 
the leading case is New York C. R. Co. v. 
Lockwood, 17 Wall. (U. S.) 357, 21 L. Ed. 
627, where the authorities are collected by 
Bradley, J. In England, however, the courts 
seem to find no conclusive objection to sus- 
taining, such contracts when specially made; 
L. E. 10 Q. B. 212; 23 U. C. Q. B. 600; 
and in New Tork, though the contracts are 
Hpheld, It Is only when expressed In clear 
and specific language and not by mere gen- 
eral words In the usual printed bills of lad- 
ing or receipts; Knell v. S. S. Co., 1 Jones &amp; 
S. (N. Y.) 423; Mynard v. R. Co., 71 N. Y. 
180, 27 Am. Rep. 28. So the liability may be 
limited in consideration of a reduced rate 
of transportation; Richmond &amp; D. R. Co. v. 
Payne, 86 Va. 481, 10 S. E. 749, 6 L. R. A. 
849; L. R. 8 H. L. 703; L. E. 10 Q. B. D. 
250; or by special contract, for all negli- 
gence except gross ; Chicago, B. &amp; N. R. Co. 
V. Hawk, 42 111. App. 322. Such a contract, 
made In New York, was enforced in an ac- 
tion In Pennsylvania according to the law 
of New York ; ICorepaugh v. R. Co., 128 Pa. 
217, 18 Atl. 503, 5 L„ R. A. 508, 15 Mn. St. 
Rep. 672. See 6ommon Cakbiees. 

The contract of an express messenger, 
whereby the railroad upon which he travels 
as messenger is exonerated from liability 
ior damages to him resulting from its neg- 
ligence, is not void as against public policy; 
Baltimore &amp; O. S. W. R. Co. v. Voigt, 176 
U. S. 498, 20 Sup. Ct. 885, 44 L. Ed. 560; 
likewise the contract of a sleeping car por- 
ter; Chicago, R. I. &amp; P. R. Co. V. Hamler, 
215 lU. 525, 74 N. E. 705, 1 L. R. A. (N. S.) 
674, 106 Am. St. Rep. 187, 3 Ann. Cas. 42. 
A contract between a railroad and a part- 
nership, to whom it has leased a strip of 
land near its track for the purpose of erectr 
ing a warehouse, which exonerates the rail- 
road from liability for damage resulting 
from fire from locomotives, is not void as 
against public policy even though there Is a 
state statute holding railroads liable for 
such damage ; Hartford P. Ins. Co. v. R. Co., 
175 U. S. 91, 20 Sup. Ct. 33, 44 L. Ed. 84, 

Provisions contained in a steamship ticket 
exempting a carrier from liability for losses 
occasioned by negligence, although such pro- 
visions are valid by the law of the country 
where the ticket was bought, are unreason- 
able and void as against the public policy 
of the United States; The Kensington, 183 
U. S. 263, 22 Sup. Ct. 102, 46 L. Ed. 190; The 
New England, 110 Fed. 415. 



By an act of congress of February 13, 1893 
(Harter Act), common carriers by sea can- 
not exempt themselves from responsibility 
for loss or damage arising from the negli- 
gence of their own servants, and any stipu- 
lation for such exemption is contrary to 
public policy and void. See Habtee Act. 

Taking precaution after an accident 
against the future is not to be construed as 
an admission of responsibility for the past'; 
Barber A. P. Co. v. Odasz, 60 Fed. 71, 8 C. C. 
A. 471, 20 U. S. App. 326; so a subsequent 
alteration or repair of the machine which 
caused an injury is not evidence of negli- 
gence In its original construction; Columbia 
&amp; P. S. R. Co. V. Hawthorne, 144 U. S. 202, 
12 Sup. Ct. 591, 36 L. Ed. 405; Champion Ice 
Mfg. &amp; C. S. Co. V. Carter, 51 S. W. 16, 21 
Ky. L. Rep. 210; Cunningham v. K. Co., 40 
Pa. Super. Ct. 212. 

Law or fact. It is generally said that the 
question of negligence is a mixed question 
of law and fact, to be decided by the court 
when the facts are undisputed or conclu- 
sively proved,' but not to be withdrawn from 
the jury when the facts are disputed, and 
the evidence is conflicting; Whart. Negl. § 
420; Faris v. Hoberg, 134 Ind. 269, 33 N. E. 
1028, 39 Am. St. Rep. 261; see Chaffee v. 
R. Co., 17 R. I. 658, 24 Atl. 141 ; Woolwine's 
Adm'r v. R. Co., 36 W. Va. 329, 15 S. E. 81, 
16 L. R A. 271, 32 Am. St. Rep. 859. In the 
great majority of cases the question is left to 
the jury to determine whether the defend- 
ant's conduct was reasonable under the cir- 
cumstances. When a well-recognized legal 
duty rested upon the defendant, it Is usual 
for the court to define this duty to the jury, 
and leave to it the question as to whether 
the defendant fulfilled this duty. More re- 
cently the courts have drawn a distinction 
between what is evidence of negUgence for 
the jury and what is negligence per se, and 
therefore a question of law for the court, 
and the tendency has been rather to increase 
the number of cases in which the question of 
negligence Is passed upon by the court In 
Pennsylvania, when the standard of duty is 
defined by law, and is the same under all 
circumstances, and when there has been 
such an obvious disregard of duty and safety 
as amounts to misconduct, the courts have 
withdrawn the case from the consideration 
of the jury. Thus the Pennsylvania rule of 
stop, look and listen limits, to a great extent, 
the province of the jury, 1. e. usually the jury 
must be satisfied that the plaintiff had met 
these requirements before the question of 
defendant's negligence arises. See Grade 
Crossing. 

It Is said to be clear, by most of the au- 
thorities, that when the facts are found, and 
It Is perfectly manifest that a prudent man 
would or would not do as the defendant 
has done, the court may rule accordingly, or 
rather, may direct, the jury to find accord- 
ingly. The same is also true when the law 



NEGLIGENCE 



2316 



NEGLIGENCE 



has prescribed the nature of the duty, and 
also when there exists a well-known prac- 
tice In the community, of a, proper character. 
In other cases, the inference concerning neg- 
ligence is left to the jury; Blgelow, Torts 
263; CarWco v. R. Co., 35 W. Va. 389, 14 
S. E. 12. When the evidence Is conflicting, 
the court should Instruct the jury that there 
would or would not be negligence, accord- 
ingly as they might find the facts; Knight 
V. R. Co., 110 N. C. 58, 14 S. E. 650. 

"When tbe circumstances of a case are 
such that the standard of duty is fixed, 
when the measure of duty is defined by 
law and Is the same under all circumstances, 
its omission Is negligence and may be so de- 
clared by the court. But it is said that 
when the negligence Is clearly defined and 
palpable, such that no verdict of a jury 
could make it otherwise, or when there Is 
no controversy as to the facts, and from 
these it clearly appears what course a per- 
son of ordinary prudence would pursue un- 
der the circumstances, the question of neg- 
ligence is purely one of law." 2 Thomp. 
Negl. 1236. 

"As a general rule, a question whether a 
party has been guilty of negligence or not, 
is one of fact, not of law. Where, how- 
ever, the plaintiff brings action for a neg- 
ligent injury, and the action of the two 
parties must have concurred to produce it, 
it devolves upon him to show that he was 
not himself guilty of negligence; and If he 
gives no evidence to establish that, fact, the 
coUjft may properly instruct the jury that 
they should return a verdict for defendant. 
Where, however, the question of negligence 
depends upon a disputed state of facts, or 
when the facts, though not disputed, are 
such that different minds might honestly 
draw different conclusions from them, the 
court cannot give such positive instruc- 
tions, but must leave the jury to draw their 
own conclusions upon, the facts, and upon 
the question of negligence depending upon 
them. To warrant the court In any case in 
instructing the jury that the plaintiff was 
guilty of negligence, the case must be a 
very clear one against him, and one which 
would warrant no other inference." Per 
Cooley, C. J., in Detroit &amp; M. R. Co. v. Van 
Steinburg, 17 Mich. 99. 

It is true, in many cases, that when the 
facts are undisputed, the effect of them is 
for the judgment of the court. That is true 
in that class of cases when the existence of 
such facts comes in question, rather than 
when deductions or inferences are to be 
made from the facts (and see Kansas Pac. 
R. Co. V. Richardson, 25 Kan. 391). In 
some cases, too, the necessary inference from 
the proof is so certain that it may be ruled 
as a question of law. Certain facts we may 
suppose to be clearly established from which 
one sensible, Impartial man would infer 
that proper care had not been used ; another 



man, equally sensible, equally Impartial, 
would infer that proper care had been used. 
It is this class of cases and those akin to it 
that the law commits to the decision of a 
jury. Twelve men of the average of the 
community, comprising men of education and 
of little education, men of learning and men 
whose learning consists in what they have 
themselves seen and heard, the merchant, 
the mechanic, the farmer, the laborer ; these 
sit together, consult, apply their separate ex- 
periences of the affairs of life to the facts 
proven, and draw a unanimous conclusion. 
This average judgment thus given, it Is the 
final effort of the law to obtain ; Sioux City 
&amp; P. R. Co. V. Stout, 17 Wall. (U. S.) 663, 
21 L. Ed. 745. Although the facts are un- 
disputed, it Is for the jury and not "for the 
judge to determine whether proper care was 
given or whether they established negli- 
gence; Ohio &amp; M. P. W. Co. V. CoUarn, 73 
Ind. 261, 38 Am. Rep. 134; Brotherton v. 
Imp. Co., 48 Neb. 563, 67 N. W. 479, 33 L. 
R. A. 598, 58 Am. St. Rep. 709. 

The terms "ordinary care," "reasonable 
prudence," and such like terms have a rela- 
tive significance, and cannot be arbitrarily 
defined; and, when the facts are such that 
reasonable men differ as to whether there 
was negligence, the determination of the 
matter Is for the jury; Grand T. R. Co. v. 
Ives, 144 U. S. 408, 12 Sup. Ct. 679, 36 L. Ed. 
485; as it Is in all cases where the Infer- 
ence from the facts is not so plain as to 
make it a legal conclusion that there was 
negligence; Northern P. R. Co. v. Egeland, 
163 U. S. 93, 16 Sup. Ct. 975, 41 L. Ed. 82; 
and it Is only where they would draw the 
same conclusion that it is a. question of law 
for the court; Texas &amp; P. R. Co. v. Gentry, 
163 TJ. S. 353, 16 Sup. Ct. 1104; 41 L. Ed. 186 ; 
Southern Pac. Co. v. Burke, 60 Fed. 704, 9 
C. C. A. 229, 23 U. S. App. 1 ; Travelers' Ins. 
Co. V. Melick, 65 Fed. 181, 12 C. C. A. 544, 27 
L. R. A. 629; and a decision of the trial 
judge on the question Is subject to review ; id. 

Whether a railroad company should erect 
guards at its car windows Is a question for 
the jury; New Orleans &amp; C. R. Co. v. 
Schneider, 60 Fed. 210, 8 C. C. A. 571, 13 U. 
S. App. 655; so also where a workman, re- 
turning from his work on the train and being 
ordered by the conductor to jump off at a 
station when the train was moving about 
four miles an hour and where the platform 
was about a foot lower than the car step, 
jumped and was seriously injured, the ques- 
tion of contributory negligence was for the 
jury ; Northern P. R. Co. v. Egeland, 163 U. 
S. 93, 16 Sup. Ct. 975, 41 L. Ed. 82; Negli- 
gence only becomes a question of law to be 
taken from the jury when the facts are such 
that fair-minded men can only draw from 
them the inference that there was no negli- 
gence; otherwise it is a question for the 
jury under proper instructions; McDermott 
V. Severe, 202 U. S. 600, 26 Sup. Ct. 709, 50 



NEGLIGENCE 



2317 



NEGLIGENCE 



li. Ed. 1162 ; nor should a case be withdrawn 
from the jury unless the conclusion follows 
as a matter of law that no recovery can be 
had upon any view which can be properly 
taken of the facts which the evidence tends 
to establish; Kreigh v. Westinghouse, C, K. 
&amp; Co., 214 U. S. 249, 29 Sup. Ct. 619, 53 L. 
Ed. 984 ; where there is uncertainty as to the 
existence of negligence or contributory neg- 
ligence, whether such uncertainty arises from 
a conflict of testimony, or because, the facts 
being undisputed, fair-minded men might 
honestly draw different conclusions there- 
from, the question is not one of law ; Texas 
&amp; P. R. Co. V. Harvey, 228 U. S. 319, 83 Sup. 
Ct. 518, 57 L. Ed. 852. 

See Lewis v. R. Co., 18 Am. L. Keg. N. S. 
284, where the subject is fully treated and 
the earlier decisions collected by states. 

In actions for negligence the English rule 
is said to be that the "judge has to say 
whether any facts have been established 
from which negligence may be reasonably in- 
ferred ; the jurors have to say whether, from 
those facts, negligence ought to 6e infer- 
red ;" 3 App. Cas. 197 ; or better, whether, as 
reasonable men, they do infer it; Poll. Torts 
420. 

Contributory Negligence. If the evidence 
shows that the plaintiff himself was guilty of 
negligence 'contributing to the injury, there 
can be no recovery; Beach, Contrib. Neg. 14. 
The distinction, however, must be drawn be- 
tween condition and causes, between causa 
causans and causa sine qua nan. The ques- 
tion must always be considered whether the 
act of the plaintiff had a natural tendency 
to expose him directly to the danger which 
resulted in the injury complained of. If it 
had not, the plaintift''s negligence is not con- 
sidered in law as contributing to the injury. 
One who sees or could have seen if he had 
looked, and has the faculties to understand 
the dangers to which he is exposed, is charg- 
ed with a knowledge of them ; and his fail- 
ure to act on the knowledge as a prudent and 
cautious man would act under like circum- 
stances, is negligence which, notwithstanding 
the negligence of the defendant, will defeat 
a recovery; Glascock v. R. Co., 73 Cal. 137, 
14 Pac. 518. And when it appears that the 
plaintiff, by the defendant's misconduct," be- 
came frightened, and in endeavoring to es- 
cape the consequence of the defendant's mis- 
conduct, rushed into danger and was injvfred, 
the plaintiff's conduct does not contribute 
to the injury; Coulter v. Exp. Co., 56 N. Y. 
585. If, through the defendant's negligence, 
the injured person is placed in a position of 
peril and confronted with sudden danger, the 
law does not require him to exercise the 
same degree of care and caution that it does 
of a person who has ample opportunities for 
the full exercise of his judgment; Dunham 
T. &amp; W. Co. V. Dandelin, 143 111. 409, 32 N. 
E. 258; Gibbons v. Ry., 155 Pa. 279, 26 Atl. 
417. Contributory negligence has been held 



to be no defence where defendant's negli- 
gence was reckless or wanton ; Kansas P. R. 
Co. V. Whipple, 39 Kan. 531, 18 Pac. 730. 

Contributory negligence is a good defence 
to an action for damages for a personal in- 
jury ; and it is immaterial to what extent it 
Is proven, provided it contributed to the in- 
jury ; Kyne v. R. Co., 8 Houst. (Del.) 185, 14 
Atl. 922 ; Gerity's Adm'x v. Haley, 29 W. Va. 
98, 11 S. B. 901 ; in order to bar a recovery, 
the contributory negligence must have been 
a proximate cause of the injury ; Cornwall 
v. K. Co., 97 N. C. 11, 2 S. E. 659 ; Virginia 
M. R. Co. V. White, 84 Va. 498, 5 S. E. 573, 
10 Am. St. Repi 874. 

In some cases it has been held that the 
plaintiff must show affirmatively that he was 
in the exercise of due care, when the injury 
happened; Kepperly v. Ramsden, 88 111. 354; 
Beers v. R. Co., 19 Conn. 566; Murphy v. 
Deane, 101 Mass. 455, 3 Am. Rep. 390; 
Mosher v. Smithfleld, 84 Me. 334, 24 Atl. 876. 
This is frequently termed the Illinois rule. 
Probably the proof need not be direct, but 
may be inferred from the circumstances of 
the case; Mayo v. R. Co., 104 Mass. 137; 
2 Thomp. Negl. 1178, note. In other states, 
contributory negligence is a matter of de- 
fence, the burden of proving which is on the 
defendant; Hocum v. Weltherick, 22 Minn. 
152; Hicks v. R. Co., 65 Mo. 34; Baltimore 
&amp; O. R. Co. V. Whitacre, 35 Ohio St 627; 
Prideaux v. Mineral Point, 43 Wis. 513, 28 
Am. Rep. 558; Bromley v. R. Co., 95 Ala. 
397, 11 South. 341; Augusta v. Hudson, 88 
Ga. 599, 15 S. E. 678; Washington &amp; G. R. 
Co. V. Harmon, 147 U. S. 571, 13 Sup. Ct. 
557, 87 L. Ed. 284; Baker v. Gas Co., 157 
Pa. 593, 27 Atl. 789, where the cases are dis- 
cussed. But even in these courts, if the 
plaintiff's own showing disclose contributory 
negligence, he cannot recover. The rule that 
a plaintiff cannot recover, if himself guilty 
of contributory negligence, applies where the 
party Inflicting the injury is not guilty of 
negligence after the position of the injured 
party was discovered, or, by the exercise 
then of reasonable care, could have been dis- 
covered ; Texas &amp; P. R. Co. v. Nolan, 62 Fed. 
552, 11 C. C. A. 202, 23 U. S. App. 443. 

Negligence of the defendant's employes in 
failing to whistle or ring a bell at a crossing 
is no excuse for contributory negligence of 
the plaintiff in failing to use his senses; 
Carlson v. R. Co., 96 Minn. 504, 105 N. W. 
555, 4 L. R. A. (N. S.) 349, 113 Am. St Rep. 
655 ; and continuing contributory negligence 
will bar a recovery by the plaintiff, although 
the defendant ought to have discovered, but 
in fact did not discover, his peril in time to 
prevent the accident; Dyerson v. R. Co., 74 
Kan. 528, 87 Pac. 680, 7 L. R. A. (N. S.) 132, 
tl Ann. Cas. 207. 

It is not contributory negligence to ride 
upon the platform of a street car in spite 
of a notice that it is dangerous to do so, and 
notwithstanding the fact that there was 



NEGLIGENCE 



2318 



NE6MGBNCB 



room at the time within the car, where it 
was the custom of the company to overload 
Its cars so that passengers ordinarily rode 
upon the platform; Capital Traction Co. v. 
Brown, 29 App. D. C. 473; but one who gives 
up his place in a street car to a woman and 
rides upon the platform where he is subse- 
quently injured, forfeits the advantage of 
the presumption of negligence on the part of 
the defendant company; Paterson v. Rapid 
Transit Co., 218 Pa. 359, 67 Atl. 616, 12 L. 
B. A. (N. S.) 839. A sijectator at a baseball 
game, who elects to occupy an unprotected 
seat, cannot recover for an injury ; Crane v. 
Baseball Co., 168 Mo. App. 301, 153 S. W. 
1076. 

Negligence is only deemed contributory 
when it is the proximate cause of the injury ; 
Smith V. Ky. &amp; Lighting Co., 80 Conn. 268, 
67 Atl. 888, 17 L. R. A. (N. S.) 707. 

The fact that the plaintiff lived near a 
powder magazine, with knowledge of the 
danger, does not constitute contributory neg- 
ligence; Hazard Powder Co. v. Volger, 58 
Fed. 152, 7 C. O. A. 130, 12 U. S. App. 665. 
It has been said that the true rule is that 
the onus of proving contributory negligence 
rests in the first instance on the defendant, 
although the plaintiff may disclose upon his 
own case such evidence of it as to relieve the 
defendant of that primary obligation and 
shift to the plaintiff the onus of displac- 
ing the effect of his own evidence; 12 Q. B. 
D. 71. 

Last Clear Chanee. If the plaintiff, by or- 
dinary care, could have avoided the effect 
of the negligence of the defendant, he is 
guilty of contributory negligence, no matter 
how careless the defendant may have been 
at the last or any preceding stage; Tuff v. 
Warman, 2 C. B. N. S. 740 (on appeal, 5 C. 
B. N. S. 573). When the defendant was 
driving carelessly along the highway, and 
ran into and injured the plaintiff's donkey, 
which was straying improperly on the high- 
way with his fore feet fettered, it was held 
that the plaintiff's negligence had not con- 
tributed to the accident; Davies v. Mann, 10 
M. &amp; W. 546. To this case the doctrine of 
the last clear chance is generally attributed. 
It is that the party who last has a clear op- 
portunity of avoiding an accident, notwith- 
standing the negligence of the other party 
Is considered responsible for It; 2 L. Quart 
Rev. 507; Grand T. R. Co. v. Ives, 144 U. S. 
408, 12 Sup. Ct. 679, 36 L. Ed. 485; Thomp- 
son V. Rapid Transit Co., 16 Utah, 281, 52 
i-ac. 92, 40 L. R. A. 172, 67 Am. St. Rep. 621 ; 
Pilmer v. Traction Co., -14 Idaho, 327, 94 Pac. 
432, 15 L. R. A. (N. S.) 254, 125 Am. St. Rep. 
161. 

If the plaintiff could by the exercise of 
reasonable care, at or just before the hap- 
pening of the injury to him, have avoided 
the same, he cannot recover; Tuff v. War- 
man, 5 C. B. N. S. 573 ; Barnum v. Terpening, 
75 Mich. 557, 42 N. W. 967 ; Willard v. Swan- 



sen, 126 111. 381, 18 N. E. 548. "The true 
ground of contributory negligence being a 
bar is that it is the proximate cause (or 
'decisive' cause) of the mischief; and negli- 
gence on the plaintiff's part, which is only 
part of the inducing cause (t. e. a 'condi- 
tion,' not a 'cause'; Whart. Negligence) will 
not disable him"; Poll. Torts 434; and it 
"would seem that a person who has by his 
own act or default deprived himself of or- 
dinary ability to avoid the consequences of 
another's negligence, can be in no better po- 
sition than if, having such ability, he had 
failed to avoid them; unless, indeed, the 
other has notice of his inability in time to 
use care appropriate to the emergency ; in 
which case the failure to use that care is 
the decisive negligence." Poll. Torts 434. 
To make this doctrine applicable, it must 
clearly appear that the negligence of one 
person was subsequent to that of the other; 
The Steam Dredge No. 1, 134 Fed. 161, 67 
C. O. A. 67, 69 L. R. A. 293. Where the neg- 
ligence of each party was the same In char- 
acter, time and duration, and equally active 
in causing the injury, the rule does not ap- 
ply; Cleveland, C, C. &amp; St. L. R. Co. v. 
Gahan, 24 Ohio Cir. Ct. R. 277. 

"Ultimate negligence" is the negligence of 
the defendant which, though anterior to the 
plaintiff's negligence, makes the defendant 
liable if in the result he could by the exer- 
cise of ordinary care have avoided the mis- 
chief; 13 Ontario L. Rep. 423; Atchison, T. 
&amp; S. F. R. Co. V. Baker, 21 Okl. 51, 95 Pac. 
433, 16 L. R. A. (N. S.) 825. The doctrine of 
last clear chance cannot be applied in an 
admiralty case ; The Steam Dredge No. 1, 134 
Fed. 161, 67 C. C. A. 67, 69 L. R. A. 293. 
The doctrine has been held not to apply 
where an intoxicated person is killed by an 
electric car whose head light can be seen 800 
feet away and would have been sufficient 
warning to a sober man of the approach of 
the car; Vizacchero v. Rhode Island Co., 26 
R. I. 392, 59 Atl. 105, 69 L. R. A. 188. See 
Herrick v. W. Power Co. (Wash.) 134 Pac. 
934. 

A street car company is liable for running 
down a, pedestrian who is walking negligent- 
ly along the track where the motorman is 
inattentive and the pedestrian fails to hear 
the approach of the car because of noises 
made by other cars on other tracks ; Indian- 
apolis, T. &amp; T. Co. V. Kidd, 167 Ind. 402, 79 
N. E. 347, 7 L. R. A, (N. S.) 143, 10 Ann. 
Cas. 942. A railroad company whose yard is 
customarily used as a thoroughfare with 
knowledge of the company, is liable for the 
death of one who is himself negligent, if 
those in charge of a train could have stopped 
it after the person was knocked down, but 
before he was killed; Teakle v. R. Co., 32 
Utah, 276j 90 Pac. 402, 10 L. R. A. (N. S.) 
486. 

Where one, knowing of the frequent pas- 
sage of cars, goes on the tracks for the 



NEGLIGENCE 



2319 



NEGLIGENCE 



purpose of repairs and removing dirt, and is 
struck and killed, tlie company is not liable, 
although the motorman does not sound the 
gong In accordance with the requirements of a 
municipal ordinance ; Brockschmidt v. R. Co., 
205 Mo. 435, 103 S. W. 964, 12 L. R. A. (N. S.) 
345 ; and a fortiori where the locomotive en- 
gineer used every effort to avert the acci- 
dent; Hoffard v. R. Co., 13« Iowa, 543, 110 
N. W. 446, 16 L. R. A. (N. S.) 797; but the 
company is liable to its employes if it is 
shown that the train was running at an ex- 
traordinary and illegal rate of speed and not 
under full control as required by the compa- 
ny's rules; Neary v. R. Co., 37 Mont. 461, 
97 Pac. 944, 19 L. R. A. (N. S.) 446. If an 
employe is lying helpless on the track as the 
result of being struck by lightning, and if 
those in charge of a train might have discov- 
ered his peril by the exercise of proper care 
in time to avoid the injury, the company is 
liable ; Sawyer v. R. &amp; L. Co., 145 N. C. 24, 
58 S. E. 598, 22 L. R. A. (N. S.) 200. 

Where a locomotive was run along the 
public street of a dty at an unlawful rate 
of speed and no signal was given of its ap- 
proach and no outlook was kept, and as a 
result a pedestrian is injured, the defence of 
contributory negligence is not available, al- 
though the employes did not know of the 
presence of the person injured ; Atchison, T. 

6 S. P. R. Co. v. Baker, 79 Kan. 183, 98 Pac. 
804, 21 L. R. A. (N. S.) 427; likewise a rail- 
road company is liable for injuries to a per- 
son who is negligently walking on its trestle, 
if those in charge of the train might, in the 
exercise of ordinary care, have discovered 
his peril and avoided the accident; Bogan v. 
R. Co., 129 N. C. 154, 39 S. E. 808, 55 L. R. 
A. 418. 

Although one Is negligent in attempting to 
cross a track in front of a street car, his 
act is not the proximate cause of a resulting 
collision, if the motorman, upon seeing his 
design, becomes confused and increases in- 
stead of decreases the speed of the car; 
Smith V. Ry. &amp; Lighting Co., 80 Conn. 268, 
67 Atl. 888, 17 L. R. A. (N. S.) 707. 

Although a company's employes may be 
negligent, after removing an intoxicated pas- 
senger from their train, in placing him up- 
on a flight of steps down which he subse- 
quently falls, to his injury, the jury may 
reasonably find that intoxication is the di- 
rect and proximate cause of the injury; 
Black V. R. Co., 193 Mass. 448, 79 N. E. 797, 

7 L. R. A. (N. S.) 148, 9 Ann. Cas. 485. 

A passenger alighting from a street car 
who immediately crosses the street and steps 
upon a parallel track without looking for 
an approaching car Is negligent, but such 
negligence does not relieve a street car com- 
pany from liability for injuries if those in 
charge of the other car, in the exercise of 
ordinary care, could have discovered his 
peril and averted the injury; Louisville Ry. 
Co. V. Hudgins, 124 Ky. 79, 98 S. W. 275, 7 



L. R, A. (N. S.) 152; but there Is no lia- 
bility for injuries to one who steps from the 
hub of a wagon, standing near a car track, 
immediately in front of an approaching car, 
where it did not appear that his position on 
the hub was so perilous as to charge the 
company with the duty of taking precautions 
to avoid injuring him; State v. Ry. Co., 106 
Md. 529, 68 Ati. 197, 16 L. R. A. (N. S.) 297. 

No one is bound to anticipate that others 
will be guilty of negligence. See L. R. 5 
H. L. 45. 

Where one is in danger through fault of 
another and chooses between two methods 
of escape, he is not negligent if he chooses 
that which, otherwise, would not be pru- 
dent; 12 Q. B. 439. See, further, Washing- 
ton &amp; G. R. Co. y. Gladmon, 15 Wall. (U. S.) 
401, 21. L. Ed. 114; Hoyt v. Hudson, 41 Wis. 
105, 22 Am. Rep. 714. 

The question of contributory negligence 
is one of fact for the jury, under proper 
instructions, and is not one of law for the 
court; Smith v. E. Co., 9 Utah 141, 33 Pac. 
626 ; Grand T. R. Co. v. Ives, 144 U. S. 408, 
12 Sup. Ct 679, 36 L. Ed. 485; Thuringer 
V. E. Co., 71 Hun 526, 24 N. Y. Supp. 1087. 
Where the evidence of contributory neg- 
ligence is not of such a conclusive charac- 
ter as would warrant the court in setting 
aside a verdict, the question should be left 
to the jury ; Washington &amp; G. R. Co. v. Har- 
mon, 147 U. S. 571, 13 Sup. Ct. 557, 37 L. 
Ed. 284. 

Formerly a rule prevailed in Illinois that 
negligence "is relative, and that the plaintiff, 
although guilty of negligence which may 
have contributed to the injury, may hold the 
defendant liable if he has been guilty of a 
higher degree of negligence, amounting to 
wilful injury. The fact that the plaintiff 
is guilty of slight negligence does not ab- 
solve the defendant from the use of care 
and the use of reasonable efforts to avoid 
the injury." See Chicago &amp; N. W. R. Co. v. 
Dimick, 96 111. 42. But the doctrine has beeB 
repudiated in Illinois; Chicago &amp; A. R. Co. 
V. Kelly, 75 111. App. 490; Macon v. Hol- 
comb. 205 111. 643, 69 N. E. 79; and it was 
rejected in Matta v. Ry. Co., 69 Mich. 109, 37 
N. W. 54; Harrison v. Electric Light Co., 195 
Mo. 606, 93 S. W. 951, 7 L. R. A. (N. S.) 
293; Tesch v. Ry. &amp; Light Co., 108 Wis. 593, 
84 N. W. 823, 53 L. E. A. 618 ; Riley v. R. 
Co., 69 Neb. 82, 95 N. W. 20; Birmingham 
Ry., L. &amp; Power Co. v. Bynum, 139 Ala. 389, 
36 South. 736; Woolf v. R. &amp; N. Co., 37 
Wash. 491, 79 Pac. 997; Missouri, K. &amp; T. 
Ry. Co. v. Kellerman, 39 Tex. Civ. App. 274, 
87 S. W. 401; Thomas v. R. Co., 124 Ga. 
748, 52 S. E. 801. 

In admiralty, where both ships are in 
fault, the damages are equally divided; 
Marsden, Coll. ch. 6; this rule Is preserved 
by the Judicature Act in the Admiralty 
Division. See 2 L. Quart. R. 357; 13 id. 17; 
CoLusiow; Report, Int Law Asso. 1895. 



NEGLIGENCEJ 



2320 



NEGLIGENCE 



An injury to a goverfiment inspector caus- 
ed by the negligence of those in charge of a 
dredge, and in part by his own negligence 
is suflBcient to bring him within the admir- 
alty rule of apportionment of damages; The 
Steam Dredge No. 1, 134 Fed. 161, 67 C. C. 
A. 67, 69 L. R. A. 293. 

Imputed. Negligence. In cases of actions 
brought by infants of tender years for in- 
juries caused by the defendant's negligence, 
it was held' in Hartfield v. Eoper, 21 Wend. 
(N. Y.) 615, 34 Am. Dec. 273, that the neg- 
ligence of the parent or guardian of the in- 
fant in permitting it to be exposed to dan- 
ger, should be itnputed to the infant and bar 
it:s right of action. Substantially all the 
cases in other jutisdictions have refiised to 
accept this doctrine. The court held in St. 
Louis &amp; S. F. R. Co. v. Underwood, 194 Fed. 
363, 114 C. C. A. 323, that the parent's negli- 
gence could not be imputed to the child in 
a case of suit brought by the child and 
said that this rule "was supported by the 
decided weight of authority." Agnew, J., in 
Kay V. R. Co., 65 Pa. 269, 3 Am. Rep. 628, 
said : "The doctrine that imputes the neg- 
ligence of the parent to the child in such a 
ease is repulsive to our natural instincts and 
repugnant to that class of persons who have 
to maintain life by daily toil." 
. In Albert v. R. Co., 5 App. Div. 544, 39 N. 
T. Supp. 430, affirmed without opinion in 
154 N. Y. 780, 49 N. E. 1093, the court ap- 
pears rather to avoid the application of the 
rule of Hartfield v. Roper, thus: "It is the 
settled rule in this state that it is not neg- 
ligence, as matter of law, for parents to 
permit a child non sid jv/ris [i. e. not of years 
of discretion] to play in the public streets 
of a city, and the burden is upon the plain- 
tifC to establish freedom from contributory 
negligence." So of a child of six years play- 
ing out of doors without a caretaker; Fer- 
rell V. Cotton Mills, 157 N. .0. 528, 73 S. E. 
142, 37 L. R. A, (N. S.) 64. 

A child has been held to be without discre- 
tion in, this connection when it was four 
years of age; Potter v. Leviton, 199 111. 93, 
64 N. E. 1029 ; whai it was two and one-half 
years of age ; Indianapolis St. R. Co. v. Bor- 
denchecker, 33 Ind. 138, 70 N. E. , 995 ; 
when it was less than four years of age; 
Fink V. Des Moines, 115 Iowa, 641, 89 N. W. 
28; and so of a boy five and one-half years 
of age who was uged to go, to school alone; 
BarksduU V. R. C.o.,'23 La. Ann. 180. 

Negligence of a father as well as of the 
mother in not discovering a train at a rail- 
road crossing was held to be imputable to a 
child held in the arms of his mother, who 
was sitting by the side of the father, who 
was driving, as the father was not acting as 
driver merely, but also as the guardian of 
his child ; Delaware, L. &amp; W. R. Co. v. De- 
vore, 114 Fed. 155, 52 C. C. A. 77. As this 
case arose in the Southern district of New 



York, it was probably influenced by the rul- 
ing In Hartfield v. Roper, supra. 

While a child of such tender years as to be 
Incapable of exercising any judgment or dis- 
cretion is not chargeable with contributory 
negligence; yet where he has attained such 
an age as to be capable of exercising judg- 
ment and discretion, he is held to such a 
degree of care as might be reasonably ex- 
pected of one of his age and mental ca- 
pacity; Twist- V. R. Co., 39 Minn. 164, 39 N. 
W. 402, 12 Am. St. Rep. 626; Houston &amp; T. 
O. R. Co. V. Boozer, 70 Tex. 530, 8 S. W. 119, 
8 Am. St. Rep. 615 ; Western &amp; A. R. Co. v. 
Young, 81 Ga. 397, 7 S. E. 912, 12 Am. St 
Rep. 320; Illinois Cent. R. Co. v. Slater, 
129 111. 91, 21 N. B. 575, 6 L. R. A. 418, 16 
Am. St Rep. 242. At what age an infant's 
responsibility for negligence is presumed to 
begin is a question of law for the court; 
Schmidt v. Cook, 1 Misc. 227, 20 N. Y. Supp. 
889. If the parent is negligent in permitting 
his child of tender years to be exposed to 
danger, his negligence is always held to bar 
his action. Thus the unexplained presence 
of a child too young to exercise judgment is 
prima fade evidence of its parents' negli- 
gence; Harrington v. R. Co., 37 Mont. 169, 
95 Pac. 8, 16 L. R. A. (N. S.) 395. 

The negligence of a gripinan'on a cable 
car In running across the crossing of an- 
other road undergoing repairs, at an ex- 
cessive rate of speed, is imputable to the 
conductor of such car in control of such 
gripman, and will prevent him recovering 
for injuries sustained by reason of such neg- 
ligence; Minster v. R. Co., 53 Mo. App. 276. 

A vessel colliding with an obstruction to 
navigation cannot be charged with the neg- 
ligence of a tug acting as an independent 
contractor in towing her, and wholly con- 
trolling her movements; Vessel Owners' T. 
Co. V. Wilson, 63 Fed. 626, 11 C. C. A. 366. 

In England, where a passenger has been 
injured by concurrent negligence of his 
own carrier and a third party, it was for- 
merly held that the carrier's negligence was 
imputed to the passenger and barred his re-' 
covery; Thorogood v. Bryan, 8 C. B. 115. 
But the doctrine has been overruled in 13 
App. Cas. 1. See a review of the case in 
Dean v. B. Co., 129 Pa. 523, 18 Atl. 718, 6 
L. R. A. 143, 15 Am. St Rep. 733. It was re- 
jected in New York, L. E. &amp; W. R. Co. v. 
Steinbrenner, 47 N. J. L. 161, 54 Am. Rep. 
126; Chapman v. R. Co., 19 N. Y. 341, 75 
Am. Dec. 344; Transfer Co. v. Kelly, 36 
Ohio St. 86, 38 Am. Rep. 558; Wabash, St 
L. &amp; P. Ry. Co. v. Shacklet, 105 111. 364, 44 
Am. Rep. 791; and, after a review of the 
authorities, in Ldttle v. Hackett, 116 U. S. 
366, 6 Sup. Ct 391, 29 L. Ed. 652. It was 
followed in Payne v. R. Co., 39 la. 523; Al- 
lyn V. R. Co., 105 Mass. 77; Prideaux v. 
Mineral Point 43 Wis. 513, 28 Am. Rep. 558. 

The negligence of a bailee of a horse and 
buggy is hot to be imputed to the owner so 



NEGLIGENCE 



2321 



NEGLIGENCE 



as to prevent him from recovering from a 
railroad company for killing the horse ; Gib- 
son V. R. Co., 226 Pa. 198, 75 Atl. 194, 27 L. 
B. A. (N. S. ) 689, 18 Ann. Gas. 535 ; contra, 
Illinois O. R. Co. v. Sims, 77 Miss. 325, 27 
South. 527, 49 L. B. A. 822 ; nor is the neg- 
ligence of a master imputable to his servant 
who is riding beside him on a truck dilven 
by the master at the time of a collision be- 
tween the truck and a street car; Doctoroff 
V. B. Co., 55 Misc. 216, 105 N. T. Supp. 229 ; 
but the negligence of a driver is imputable 
to the employer under like circumstances; 
Markowitz v. B. Co;, 186 Mo. 350, 85 S. W. 
351, 69 L. E- A. 389. 

One who is riding as a guest is not pre- 
cluded from recovery by the negligence of 
the driver where the impending danger is so 
sudden as not to permit her to act for her 
own protection; Shultz v. B. Co., 193 Mass. 
309, 79 N. B. 873, 8 L. B. A. (N. S.) 597, 118 
Am. St. Bep. 502, 9 Ann. Cas. 402; but the 
right of one who has entrusted himself to 
the care of another, with whom he is riding, 
to recovery for injuries caused by the neg- 
ligence of a street car company, is dependent 
upon the exercise of due care by his com- 
panion; Evensen v. B. Co., 187 Mass. 77, 72 
N. E. 355. The negligence of a locomotive 
engineer is not imputable to the conductor in 
charge of the train ; St. Louis &amp; S. F. E. Co. 
V. McFall, 75 Ark. 30, 86 S. W. 824, 69 L. B. 
A. 217, 5 Ann. Cas. 161. One who rides in a 
buggy with another, who is driving, is bound 
to exercise care upon approaching a rail- 
road crossing ; Colorado &amp; S. R. Co. v. Thom- 
as, 33 Colo. 517, 81 Pac. 801, 70 L. E. A. 681, 
3 Ann. Cas. 700. The bailee of a carriage 
does not become the master or principal of 
the driver, so as to be chargeable with his 
negligence; Sluder v. Transit Co., 189 Mo. 
107, 88 S. W. 648, 5 L. B. A. (N. S.) 186. 
The negligence of a husband who is driving 
his wife in a conveyance Is not imputable to 
her, so as to prevent her recovery against 
another negligent person who causes inju- 
ries to her, and she can sue in her own 
name; Louisville By. Co. v. McCarthy, 129 
Ky. 814, 112 S. W. 925, 19 L. E. A. (N. S.) 
230, 130 Am. St. Bep. 494. 

The negligence of a landlord is not Im- 
ptitable to his tenants for damage by the 
fall of a «vall in their building due to such 
negligence, and the negligent excavation of 
the adjoining lot; Contos v. Jamison, 81 S. 
C. 488, 62 S. E. 867, 19 L. E. A. (N. S.) 498. 

The negligence of a husband cannot be 
imputed to his wife, veho was riding with 
him over a defective highway, unless it be 
shown that he was at that time under her 
control and direction ; Beading Tp. v. Telfer, 
57 Kan. 798, 48 Pac. 134, 57 Am. St. Bep. 355. 
Such is the weight of the authorities ; Shef- 
field V. Tel. Co., 36 Fed. 164; Hoag v. B. Co., 
Ill N. Y. 199, 18 N. E. 648. There are cases 
to the contrary; Peck v. B. Co., 50 Conn. 
379 ; Yahn v. Ottumwa, 60 la. 429, 15 N. W. 
BoTTv.— 146 



257 ; G., C. &amp; S. F. B. Co. v. Greenlee, 62 Tex. 
344. 

In Eylands v. Fletcher, L. R. 3 H. L. 330, 
it was held that one who brings a dangerous 
substance on his property, and keeps it there 
without restraining it, is liable for an injury 
caused by ife escape. In L. B. 10 Exch. 255, 
the court held that the mere fact of building 
a dam and accumulating water which flooded 
the plaintiff would not make the owner of 
the dam liable if it gave way without the 
fault of the owner; so in Everett v. Tunnel 
Co., 23 Cal. 225. In Turpen v. Irr. Dist, 141 
Cal. 1, 74 Pac. 295, the defendant was held 
liable for damages from seepage from an ir- 
rigation ditch because its construction was 
not in the usual and reasonable manner; 
and a like case in Idaho placed the owner's 
liability on the ground of negligence; Mc- 
Carty v. Canal Co., 2 Idaho (Hash.) 245, 10 
Pac. 623. In Losee v. Buchanan, 51 N. T. 
476, 10 Am. Bep. 623, the court says that 
the rule of Bylands v. Fletcher, 1 L. B. Ex. 
265, does not apply in that state to one who 
builds a dam upon his own premises and 
holds back and accumulates water for his 
own use, or if he brings water upon his 
premises in a reservoir, without proof of 
some' fault or negligence on his part ; and to 
the same effect Pixley v. Clark, 35 N. Y. 524, 
91 Am. Dec. 72; Murphy v. Gillum, 73 Mo. 
App. 487; but in Parker v. Larsen, 86 Cal. 
236, 24 Pac. 989, 21 Am. St. Bep. 30, the own- 
er of an artesian well who allowed percola- 
tion to Injure others was held liable for the 
injury on the ground that the water which 
did the injury was not a natural stream flow- 
ing across defendant's land, but was brought 
upon the land by artificial means, and that 
where one brings a foreign substance upon 
his land, he must take care of it ; a railroad 
company was found to maintain a nuisance 
where It failed to construct a culvert and 
thereby created a reservoir, which, filling up 
with water, damaged the plaintiff's land by 
percolation; International &amp; G. N. B. Co. v. 
Slusher, 42 Tex. Civ. App. 631, 95 S. W. 717; 
one who undertakes to change the accus- 
tomed flow of surface water and to concen- 
trate it in underground drains and a vault 
is bound to provide adequate means to dis- 
charge the water so gathered by it, and to 
discharge it in a way that would not be inju- 
rious to others. That the company relied 
on the judgment of competent engineers vrill 
not avail as a defence, and is not the fulfill- 
ment of a duty to avoid doing injury to an- 
other; Lion V. B. Co., 90 Md. 266, 44 Atl. 
1045, 47 L. E. A. 127. 

The rule of Eylands v. Fletcher has been 
adopted "with fir without modification in 
many of the states; Brennan Const Co. v. 
Cumberland, 29 App. D. C. 554, where it was 
held that one who stores upon his premises 
near a navigable river large quantities of, 
oil, the escape of which is bound to injure 
persons using the stream, is liable for the 



NEGLIGENCE 



2322 



NEGLIGENCE 



injury done in case of an escape of the oil, 
although it occurs without any negligence in 
his part; so in Berger v. Gaslight Co., 60 
Minn. 301, 62 N. W. 336, the escape of crude 
petroleum from a tank was held to render 
the defendant liable, without proof of neg- 
ligence on his part; it was no defence that 
the defendant was ignorant that his tanks 
were leaking; Kinnaird v. Oil Co., 89 Ky. 
468, 12 S. W. 937, 7 L. R. A. 451, 25 Am. 
St. Rep. 545. The escape from a pipe \iv 
of oil brought from a distance is held a nui- 
sance irrespective of negligence, and will 
render the owner of the pipe line liable in 
damages to one injured thereby ; Hauck v. 
Pipe Line Co., 153 Pa. 366, 26 Atl. 644, 20 
L. R. A. 642, 34 Am. St. Rep. 710. This case 
was distinguished from Pennsylvania Coal 
Co. V. Sanderson, 113 Pa. 126, 6 Atl. 453, 
57 Am. Rep. 445, where the injuries com- 
plained of were the natural and necessary 
results, of the development by the owner of 
the resources of his land. In the pipe line 
case the oil which was the cause of the in- 
jury to the plaintiff's property was brought 
from a distance, and allowed to escape from 
its pipes and to percolate through plaintiffs' 
lands and destroy their springs. The mere 
fact that the business Is a lawful business 
and has been conducted with care is no de- 
fence where it is not incident and necessary 
to the development of the land or the sub- 
stances ■ lying within it. The owner of the 
land has a right to develop it by digging for 
coal, iron, gas, oil, or other minerals, and 
if in the progress of his development an in- 
jury occurs to the owner of adjoining land, 
without fault or negligence, an action for 
such an injury cannot be maintained. It is 
not so where the injury is caused by the 
prosecution of a business which has no nec- 
essary relation to the land itself and is not 
essential to its development ; Robb v. Carne- 
gie Bros. &amp; Co., 145 Pa. 324, 22 Atl. 649, 14 
L. R. A. 329, 27 Am. St. Rep. 694. To permit 
negligently the escape of crude oil into a 
sewer was held to give a right of action to 
one whose products were injured by gases 
arising therefrom ; Brady v. S. &amp; S. Co., 102 
Mich. 277, 60 N. W. 687, 26 L. R. A. 175. 

A gas company was held liable to the own- 
er of a greenhouse for the escape of gas from 
its mains laid in a city street through a city 
sewer, owing to the negligence of the city in 
building the sewer; Butcher v. Gas Co., 12 
R. I. 149, 34 Am. Rep. 626; Evans v. Gas 
Co., 148 N. Y. 112, 42 N. B. 513, 30 L. R. A. 
651, 51 Am. St. Rep. 681. It has been held 
that gas companies cannot be held Uable 
without proof of negligence; Morgan v. Imp. 
Co., 214 Pa. 109, 63 Atl. ^17; Koelsch v. 
Philadelphia Co., 152 Pa. 355, 25 Atl. 522, 
18 L. R. A. 759, 34 Am. St Rep. 653, where 
a gas company permitted the accumulation 
of gas on premises under its control, through 
percolation from a leak in the main pipe, it 
was held liable for an injury to one who in 



the course of his duty as a water inspector 
was required to visit the premises to inspect 
the meter. 

While Rylands v. Fletcher has been cited 
frequently by our courts, few of them have 
given it unqualified approval, while many 
have emphatically rejected its doctrine. 
Massachusetts limits the doctrine to cases 
of trespass and nuisance; Ainsworth v. 
Lakin, 180 Mass. 397, 62 N. E. 746, 57 L. 
R. A. 132, 91 Am. St Rep. 314. The doctrine 
has been rejected in Losee v. Buchanan, 51 
N. Y. 476, 10 Am. Rep. 623; Brown v. Col- 
lins, 53 N. H. 442, 16 Am. Rep. 372; Mar- 
shall V. Welwood, 38 N. J. L. 339, 20 Am. 
Rep. 394. The common law did not impose 
upon the pwner of cattle the Uability of an 
insurer against all damage done by them, if 
they escaped from his land ; but when vicious 
animals are not useful for any lawful pur- 
pose, or are so kept as to be a menace , to 
human beings, while engaged in lawful pur- 
suits, they are fairly classed as a nuisance, 
and if they do damage, their owner or re- 
sponsible keeper is liable ; Aldrich v. Wright, 
53 N. H. 398, 16 Am. Rep. 339 ; Muller v. Mc- 
Kesson, 73 N. Y. 195, 29 Am. Rep. 123. 
When the vicious animal, such as a watch- 
dog, may be lawfully kept for useful pur- 
poses, then the liability is for negligence in 
the manner of keeping it; Knickerbocker Ice 
Co. V. Finn, 80 Fed. 483, 25 C. C. A. 579; 
Hahnke v. Friederich, 140 N. Y. 224, 35 N. K 
487; Baldwin v. Ensign, 49 Conn, 113, 44 
Am. Rep. 205. 

The common law held the person start- 
ing a fire, even for necessary and lawful pur- 
poses, to an absolute responsibility for its 
consequences ; 2 H. IV, 18, pi. 6. This was 
modified later. The same extraordinary lia- 
bility rests upon one, who brings electricity 
upon his premises, whence it escapes, to 
the injury of neighbors; [1893] 2 Ch. 186. 
In the United States the common law liabili- 
ty for fire has never been enforced. 

The rule in Rylands v. Fletcher has been 
treated at length by Prof. Francis' H. Bohlen 
in Univ. of Pa. Law Rev., etc. (1911). 

A landlord who lets premises in a condi- 
tion so unrepaired that they are a nuisance, 
and agrees to keep. them in repair, is liable 
in tort to any person, other then the tenant 
who is injured because of such -condition, 
on the ground that by the letling he has au- 
thorized the maintenance of the nuisance; 
he is not in such case liable in tort to the 
tenant; Miles v. Janvrin, 196 Mass. 431, 82 
N. E. 708, 13 L. R. A. (N. S.) 378, 124 Am. 
St Rep. 575. 

In L. R. 6 Q. B. 759, the plaintiff was in- 
jured while walking along a public highway 
by a brick which fell from a pier of the de- 
fendant's bridge; the defendant was held 
liable. It was said to be the duty of the 
defendant from Ume to time to inspect the 
bridge and ascertain that the brickwork was 
in good order. In L. R. 1 Q. B. D. 314, it 



NEGLIGENCE 



2323 



NEGLIGENCE 



was held that one who for his own benefit 
suspends an object over the highway, and 
puts the public safety in peril thereby, Is 
under an absolute duty, to keep it In such a 
state as not to be dangerous (here the de- 
fendant was the lessee and occupier of a 
house from the front of which a heavy lamp 
projected over the public footway). A lot 
owner in a city who maintains a scuttle hole 
in the sidewalk in front of his house is lia- 
ble for injuries received by one using the 
sidewalk, although the scuttle hole was au- 
thorized by the city and the tenant had 
agreed to keep it closed; Calder v. Smalley, 
66 la. 219, 23 N. W. 638, 55 Am. Rep. 270. 
One who builds or maintains a high chim- 
ney, the fall of which would injure an ad- 
joining building, is liable for its fall in a 
not unusual gale ; Cork v. Blossom, 162 Mass. 
330, 38 N. E. 495, 26 L. R. A. 256, 44 Am. 
St. Rep. 362. One who builds a wall owes a 
duty to persons lawfully upon the premises 
to take reasonable care that the wall should 
be BO constructed as not to fall; Dettmering 
V. English, 64 N. J. L. 16, 44 Atl. 855, 48 L. 
R. A. 106; so if an awning be erected, the 
owner of the building is liable for damage 
occasioned by its fall, if the wall to which 
it is attached is of insufficient strength to 
support its burden ; Riley v. Simpson, 83 
Cal. 217, 23 Pac. 293, 7 L. R. A. 622; and 
where a sign projects over the sidewalk it 
is the duty of the owner to see that the fas- 
tenings are secure; Railway Co. v. Hopkins, 
54 Ark. 209, 15 S. W. 610, 12 L. R. A. 189 ; 
one who permits a shivered pane of glass to 
remain in a window above a street will be 
liable to a person who is struck by a piece 
of the glass while on a sidewalk below the 
window; Detzur v. Brewing Co., 119 Mich. 
282, 77 N. W. 948, 44 L. R. A. 500. The own- 
er was held liable where a cornice overhang- 
ing the sidewalk fell because nails fastening 
it to the building had , been loosened by ordi- 
nary decay, though he had no knowledge of 
the defect; 21 Ont. App. 433. 

The installation of an electric third-rail 
system will not render the company liable 
to a trespasser. It being guarded by a fence, 
though there was nothing to show the tres- 
passer (an infant of seven years) that the 
third-rail was more dangerous than the or- 
dinary track, it being exposed and uncover- 
ed ; Riedel v. R. Co., 177 Fed. 374, 101 C. C. 
A. 428, 28 L. R. A. (N. S.) 98, 21 Ann. Cas. 
746 ; contra, Anderson v. • R. Co., 36 Wash. 
387, 78 Pac. 1013, 104 Am. St. Rep. 962, where 
the passenger was Injured by the third-rail 
while walking along the track after having 
been wrongfully ejected from a train. 

A man must not set traps of a dangerous 
description in a situation to invite, and for 
the particular purpose of inviting, his neigh- 
bor's animals, so that it would compel them 
by their instinct ■ to come into the trap ; 
Walsh V. R. Co., 145 N. Y. 301, 39 N. E. 1068, 
27 L. R. A. 724, 45 Am. St. Rep. 615; 9 



East 277. One who dug a pit under a cot- 
ton-gin near the highway leaving it unin- 
closed, vrith corn and cotton seed scattered 
about it, was held liable for the death of a 
cow that wandered into it ; Jones v. Nichols, 
46 Ark. 207, 55 Am. Rep. 575. 

Lord BUenborough intimates in Townsend 
v. Wathen, 9 East 277, that there is no dif- 
ference between drawing an animal into a 
trap by means of his instinct which he can- 
not resist and putting him there by manual 
force. 

It is a general principle that one who in- 
vites another upon his premises is bound to 
exercise more than ordinary care towards 
him. If the person giving the invitation is 
alone benefited he is responsible for even 
the slightest negligence. So a storekeeper, 
who either expressly or impliedly invites, the 
public to enter his place of business for the 
purpose of trading must exercise a high 
degree of care to keep his premises in a safe 
condition, and where such person is acci- 
dentally injured the shopkeeper is liable in 
the absence of negligence on the part of 
the person injured; Oberfelder v. Doran, 26 
Neb. 118, 41 N. W. 1094, 18 Am. St. Rep. 771 ; 
Engel v. Smith, 82 Mich. 1, 46 N. W. 21, 21 
Am. St. Rep. 549; Snyder v. Witwer Bros., 
82 la. 652, 48 N. W. 1046; O'Brien v. Tatum, 
84 Ala. 186, 4 South. 158 ; Clopp v. Mear, 134 
Pa. 203, 19 Atl. 504; so letter-carriers have 
an implied invitation to enter certain build- 
ings for the purpose of placing mail in 
boxes; Gordon v. Cummings, 152 Mass. 513, 
25 N. E. 978, 9 L. R. A. 640, 23 Am. St. Rep. 
846; and an employe and contractor for the 
construction of a building is not a trespass- 
er and may maintain an action for injuries; 
Ferris v. Aldrich, 12 N. Y. Supp. 482. See 
Webb, Elevators. A person invited to come 
upon a ship for the purpose of business is 
entitled to be protected by the exercise of 
such care and prudence as would render the 
premises reasonably safe; The William 
Branfoot, 52 Fed. 390, 3 0. C. A. 155, 8 U. 
S. App. 129 ; and one who, while riding in a 
private carriage of another at his invita- 
tion, is Injured by the negligence of a third 
party, may recover against the latter, not- 
withstanding the negligence of the driver of 
the carriage may have contributed to the in- 
jury; Union Pac. R. Co. v. Lapsley, 51 Fed. 
174, 2 C.,C. A. 149, 16 L. R. A. 800, 4 U. S. 
App. 542. But the owner of land and of 
buildings is not liable to one who is on his 
premises as a mere licensee. As one who- 
enters on premises by permission only, with- 
out any Inducement being held out to him 
by the occupant, cannot recover for in- 
juries caused by obstructions or pitfalls; 
Gibson v. Leonard, 143 111. 182, 32 N. B. 182, 
17 L. R. A. 588, 36 Am. St. Rep. 376 ; unless 
it was unlawful to erect the machine or 
contrivance, or the injury was wilful and 
wanton; the wilfulness will be presumed 
from gross negligence; Galveston Oil Co. v. 



NEGLIGENCE 



2324 



NEGLIGENCE 



Morton, 70 Tex. 400, 7 S. "W. 756, 8 Am. St. 
Rep. 611 ; where an elevator Is out of order 
or is intended for freight only and not for 
passengers, and notice of such fact is duly- 
posted, one who has a reasonable oppor- 
tunity for seeing and reading such posted no- 
tice assumes the risk of venturing on or 
near such elevator; Springer v. Byram, 137 
Ind. 15, 36 N. B. 361, 23 L. R. A. 244, 45 Am. 
St. Bep. 159; Hansen v. Schneider, 58 Hun 
60, 11 N. T. Supp. 347 ; McCarthy v. Foster, 
156 Mass. 511, 31 N. E. 385. There is an 
ambiguity in the use of the word license in 
decisions relating to negligence. It is some- 
times used for sufferance of a trespass ; L. 
R. 1 C. P. 274; sometimes equivalent to in- 
vitation ; 4 C. B. N. S. 563, 567. See 2 O. P. 
D. 310. 

Invited Persona. The defendant is obliged 
to exercise due care to warn an invited per- 
son of dangers he does know and those 
which, by the exercise of reasonable care, he 
might have known; L. R. 1 C. P. 274. A 
licensee is raised to an invited person when 
the defendant receives some benefit. An in- 
vited person is one going not only on his 
own business but also on business for de- 
fendant. There is a conflict, as to the posi- 
tion of a social guest or a fireman, but by 
the better view they are considered mere li- 
censees. 

"One managing a place of public amuse- 
ment, and who sells intoxicating liquors to a 
person whom he knows to be of a quarrel- 
some disposition when intoxicated, is bound 
to exercise reasonable care to protect other 
customers from the assaults and insults of 
such person; Mastad v. Swedish Brethren, 
83 Minn. 40, 85 N. W. 913, 53 L. R. A. 803, 
85 Am. St. Rep. 446. Persons conducting a 
fair are liable for injury to a patron caused 
by the fall of the fioor in one of its build- 
ings ; Brown v. Agr. Soc, 47 Me. 275, 74 Am. 
Dec. 484; so are proprietors of a hall for 
the giving way of a guard rail against 
which persons were accustomed to lean; 
Schofield V. Wood, 170 Mass. 415, 49 N. E. 
636 ; and so is , a corporation conducting a 
balloon ascension for injuries caused by the 
insecure fastening of the guy ropes ; Peckett 
V, Beach Co., 44 App. Div. 559, 60 N. Y. Supp. 
966; or for the fall of a pole used in con- 
nection with the exhibition, where no notice 
was given that the pole would fa,ll; Rich- 
mond &amp; M. R. Co. V. Moore's Adm'r, 94 Va. 
493, 27 S. E. 70, 37 L. R. A. 258. The owner 
of a toboggan slide must anticipate and pro- 
vide against injuries from defects in con- 
struction to the extent that reasonably pru- 
dent men might foresee the necessity for 
doing ; Barrett v. Imp. Co., 174 N. Y. 310, 66 
N. E. 968, 61 L. R. A. 829. 

The owner of a pleasure park, in which 
there is a swimming pool operated for hire, 
is liable to one diving and injured by strik- 
ing invisible timber under the water; Bass 
V. Reitdorf, 25 Ind. App. 650, 58 N. E. 95 



(but the mere presence of a pond In a public 
pleasure park is not an invitation to bathe 
therein ; and where there is no invitation or 
sign or appearance that the pond is used by 
visitors for such purpose, the proprietor is 
not obliged to inform all comers that they 
shall not bathe therein; Le Grand v. Trac- 
tion Co., 10 Pa. Super. Ct. 12). 

The owner of a public bathing resort may 
be found to be negligent if he places no 
signs as to the depth of water, or marks to 
indicate danger, and no one at hand to aid 
persons in danger; Larkin v. Beach Co., 30 
Utah 86, 83 Pac. 686, 3 L. R. A. (N. S.) 982, 
116 Am. St. Rep. 818, 8 Ann. Cas. 977. 
Where the defendant had negligently con- 
structed a shooting gallery on his exhibition 
grounds, he was held liable to one injured 
by a bullet therefrom, although the plaintiff 
was not at the time on the owner's land, but 
was waiting to be admitted; he was held 
to be classed as a business visitor ; Thornton 
v. Agri. Soc, 97 Me. 113, 53 Atl. 979, 94 Am. 
St. Bep. 488. 

One who maintains a park for the enter- 
tainment of the public, and has knowledge 
of a conspiracy on the part of certain per- 
sons to assault negroes visiting the park, is 
liable for injuries inflicted on a negro in pur- 
suance of such conspiracy, where he per- 
mitted him to enter and took no measures 
to protect him from danger; Indianapolis 
St. R. Co. v. Dawson, 31 Ind. App. 605, 68 
N. E. 909. In commenting on this case, it is 
said: "If as a result of the defendant's in- 
vitation, an unsuspecting plaintiff has been 
Intentionally or negligently led into a trap, 
his right to demand indemnity from the de- 
fendant should not depend upon the par- 
ticular manner in which he meets with in- 
jury;" 17 Harv. L. R. 358. 

There is a duty to the licensee to warn 
him against all perils known to the defend- 
ant and concealed; Campbell v. Boyd, 88 N. 
C. 129, 43 Am. Rep. 740 ; Bennett v. B. Co., 
102 U. S. 578, 26 L. Ed. 235. 

A man is not liable in any way for the 
condition of his property to a trespasser un- 
less he sets an active force in motion aimed 
at expectant trespassers; Lary v. R. Co., 
78 Ind. 323, 41 Am. Rep. 572. The obligation 
of a railroad company and its operatives is 
not pre-existing, but arises at the moment of 
the discovery of the trespasser and is nega- 
tive in its nature— a duty which is common 
to human conduct to make all reasonable ef- 
fort to avert Injury to others by means 
which can be controlled ; Sheehan v. B. Co., 
76 Fed. 201, 22 C. 0. A. 121, 46 U. S. App. 
498. As to the duty of an engineer to keep a 
lookout for trespassers, the decisions are in 
conflict : In Cincinnati &amp; Z. R. Co. v. Smith, 
22 Ohio 227, it was held that locomotive en- 
gineers, so far as consistent with liieir oth- 
er duties, must use ordinary care to avoid 
injuring persons, and that they were of 
course bound to adopt the ordinary precau- 



NEGLIGENCE 



2325 



NEGLIGENCE 



tlons to discover danger as well as to avoid 
its consequences. In Herrlek v. Wlxom, 121 
Mich. 384, 80 N. W. 117, 81 N. W. 333, It was 
held that where a trespasser Is discovered on 
the premises by the owner or occupant, then 
any negligence resulting In injury will ren- 
der the person guilty of negligence liable to 
respond in damages. In Maynard v. R. Co., 
115 Mass. 458, 15 Am. Eep. 119, the company 
was held not liable to a trespasser for any- 
thing short of reckless or »wanton miscon- 
duct. In Jeffries v. K, Co., 129 N. C. 236, 39 
S. E. 836, the duty of keeping a look-out was 
held to rest on the defendant. If it can 
keep a proper look-out by means of an en- 
gineer alone, that is sufiacient. But if it 
cannot, and if the aid of the fireman is need- 
ed, he also should be used, and if either or 
both are so hindered that a proper look-out 
cannot be kept, then it is the duty of the 
defendant, at such places on its road, to have 
a third man employed, for it is the duty of 
the defendant to keep a proper look-out. 

Twntable Cases. There is a class of cases 
where the owner of property is held liable 
to children who are trespassing thereon and 
injured, upon the ground that the owner is 
bound to know that children may be attract- 
ed and may thereby be injured, although the 
owner is guilty of no negligence except in 
maintaining property in such condition that 
children may trespass thereon to their harm. 
As many such cases have arisen in connection 
with railroad turntables, the whole class has 
been called turntable cases. 

Turntables being somewhat in the na- 
ture of a merry-go-rounds are such as to 
render them peculiarly attractive to children, 
and although on the private property of a 
railroad company, they are usually located 
in more or less public places, where the 
presence of children might naturally be ex- 
pected. That a rule requiring all dangerous 
attractions to be guarded would be burden- 
some on the landowner is not denied and gen- 
erally he is not held liable for injuries to 
child trespassers, unless guilty of gross and 
wanton negligence. But whether the good 
to the community would outweigh the partial 
restriction of the dominion over property 
is an open question. In the case of the turn- 
table the expense and inconvenience of keep- 
ing them locked or secured is slight in com- 
parison with the benefits to be derived to the 
public in keeping them secured. In an early 
case, the question. of the negligence of the 
company in leaving its turntables unguarded 
was left to the jury, and it was said that the 
fact that the child was a trespasser did not 
relieve the company from the obligation to 
exercise reasonable care for its safety ; Sioux 
City &amp; P. R. Co. V. Stout, 17 Wall. (U. S.) 
657, 21 L. Ed. 745. Though a railroad com- 
pa:ny is not obliged to fasten its turntable so 
securely that it is impossible for children to 
remove the fastenings, the fastenings must 
be such that an ordinarily prudent person 



would deem them sufficient to render it im- 
probable that young children would remove 
them; O'Malley v. R. Co., 43 Minn. 289, 45 
N. W. 440. A railroad company is liable for 
an injury received by an infant while upon 
its premises from idle curiosity or for pur- 
poses of amusement, if such injury was, un- 
der the circumstances, attributable to the 
negligence of the company ; Union P. R. Co. 
V. McDonald, 152 U. S. 262, 14 Sup. Ct. 619, 
38 L. Ed. 434. 

A turntable Is a dangerous machine likely 
to cause injury to children who resort to it; 
if defendants took no means to keep children 
away and to prevent accident, they were 
guilty of negligence; Barrett v. Southern 
Pac. Co., 91 Cal. 296, 27 Pac. 666, 25 Am. St. 
Rep. 186; Ferguson v. R. Co., 77 Ga. 102; 
Kansas 0. R. Co. v. Fitzsimmons, 22 Kan. 
686, 31 Am. Rep. 203; Nagel v. R. Co., 75 
Mo. 653, 42 Am. Rep. 418 ; Bridger v. R. Co., 
25 S. C. 24; Ft. Worth &amp; D. C. R. Co. v. 
Measles, 81 Tex. 474, 17 S. W. 124; Edging- 
ton V. R. Co., 116 la. 410, 90 N. W. 95, 57 L. 
R. A. 561 ; Ft Worth &amp; D. C. R. Co. v. Rob- 
ertson (Tex.) 16 S. W. 1093; contra, Daniels 
V. R. Co., 154 Mass. 349, 28 N. B. 283, 13 L. 
R. A. 248, 26 Am. St. JKep. 253; Delaware, 
U &amp; W. R. Co. V. Reich, 61 N. J. L. 635, 40 
Atl. 682, 41 L. R. A. 831, 68 Am. St. Rep. 
727; Walker's Adm'r v. R. Co., 105 Va. 226, 
53 S. E. 113, 4 L. R. A. (N. S.) 80, 115 Am. 
St. Rep. 871, 8 Ann. Cas. 862. 

What an express invitation would be to 
an adult, the temptation of an attractive 
plaything is to a child of tender years ; Keffe 
V. R. Co., 21 Minn. 207, 18 Am. Rep. 393. If 
the defendant knew that his turntable, when 
left unfastened, was attractive and danger- 
ous to young children, and knew also that 
children were In the habit of going on it for 
play. It was not merely Inviting young chil- 
dren to leave it unfastened and unguarded, 
but was holding out an allurement; KefEe 
V. R. Co., 21 Minn. 207, 18 Am. Rep. 393. 

In the case of young children and other 
persons not swi juris, an implied license 
might sometimes arise, when it would not' on 
behalf of others; thus, leaving exposed a 
tempting thing for children to play with, 
where they would be likely to gather for 
that purpose, may be equivalent to an invi- 
tation to them to make use of it; Cooley, 
Torts, c. 10, p. 303. A leading English case 
is Lynch v. Nurdin, 1 Q. B. 29, where the 
defendant's servant went into a house, leav- 
ing his horse and cart standing in the street 
for about half an hour unguarded, and a 
child playing about the team was run over 
by the wheel and his leg broken. The care- 
lessness of the servant was held to have 
tempted the child and the action against the 
defendant was maintainable. 

On the other hand, it Is held that the de- 
fendant owes no duty of care in respect to 
the condition of a turntable or of a defective 
hedge, to a child trespassing upon its premis- 



NEGLIGENCE 



2326 



NEGLIGENCE 



es, and the fletioii of implied invitation op 
allurement Is repudiated ; 41 Ir. L. T. K. 157. 
Property owners are not bound to contem- 
plate the infraction of property rights he- 
cause the temptation to untrained minds to 
infringe them might have been foresean ; 
Holbrook v. Aldrich, 168 Mass. 16, 46 N. B. 
115, 36 L. R. A. 493, 60 Am. St. Rep. 364, 
per Holmes, 3. 

An invitation is not extended to children 
to enter upon private premises, by erecting 
thereon for beneficial use a structure which 
happens to be attractive to them ; Delaware, 
L. &amp; W. R. Co. V. Reich, 61 N. J. L. 635, 40 
Atl. 682, 41 L. R. A. 831, 68 Am. SL Rep. 
727 ; [1913] 1 K. B. 398 ; and a landowner is 
not under a duty to keep his premises safe 
for mere trespassers, even if they are chil- 
dren ; Ritz V. Wheeling, 45 W. Va. 262, 31 S. 
E. 993, 43 L. R. A. 148 ; Ryan v. Towar, 128 
Mich. 463, 87 N. W. 644, 55 L. R. A. 310, 92 
Am. St. Rep. 481; Dobbins v. R. Co., 91 Tex. 
60, 41 S. W. 62, 38 L. R. A. 573, 66 Am. St. 
Rep. 856; Fitzmaurice v. Lighting Co., 78 
Conn. 406, 62 Atl. 620, 3 L. R. A. (N. S.) 
149, 112 Am. St. Rep. 159. To leave a street 
car in the streets is held not to be an invi- 
tation or license to children to play upon it, 
although the company knows that it attracts 
them ; Gay v. Ry. Co., 159 Mass. 288, 34 N. 
E. 186, 21 L. R. A. 448, 38 Am. St. Rep. 415 ; 
or to leave a hand car on the ground beside 
a railroad track ; Robinson v. R. Co., 7 Utah 
493, 27 Pac. 689, 13 L. R. A. 765. An owner 
was held to be not under obligation so to 
pile ties as to prevent injury to a child at- 
tempting to climb upon them ; Missouri, K. 
Ai, T. R. Co. V. Edwards, 90 Tex. 65, 36 S. W. 
430, 32 L. R. A. 825; Powers v. Bridge Co., 
97 App. Div. 477, 89 N. Y. Supp. 1030; Kram- 
er v. R. Co., 127 N. O. 328, 37 S. E. 468, 52 
L. R. A. 359; Lynch v. Knoop, 118 La. 611, 
43 South. 252, 8 L. R. A. iN. S.) 480, 118 
Am. St. Rep. 391, 10 Ann. Cas. 807 (where 
an attempt had been made to drive the child 
away). 

A city is not liable for the death of a child 
who falls into an open conduit while play- 
ing, and drowns; Brown v. Salt Lake City, 
33 Utah, 222, 93 Pac. 570, 14 L. R. A. (N. 
S.) 619, 126 Am. St. Rep. 828, 14 Ann. Cas. 
1004; neither Is the owner of an open bulk- 
head near a path used by school children, 
for the drowning of a child who falls there- 
in; Bottum's Adm'r v. Hawks, 84 Vt 370, 
79 Atl. 858, 35 L. R. A. (N. S.) 440, Ann. Cas. 
1913A, 1025. See also 46 Am. L. Rev&gt; 277. 
The fact that a pnblic bridge is attractive 
to boys does not render an electric company 
liable where a boy climbs up a pier thereon 
and is electrocuted by contact with a live 
wire; Graves v. W. P. Co., 44 Wash. 675, 
87 Pac. 956, 11 L. R. A. (N. S.) 452. 

A child who climbs into a milk wagon and 
rides a short distance thereon with the con- 
sent of the owner is a trespasser, and the 
owner's consent does not constitute an im- 



plied invitation, and he is not liable for hei^ 
injury; West v. Poor, 196 Mass. 183, 81 N. 
E. 960, 11 L. R. A. (N. S.) 936, 124 Am. St. 
Rep. 541. Where a child of 2i^ years got 
through a fence to a pile of railroad sleepers 
at a place where the railroad company had 
knowledge that children constantly played, 
and from thence went 35 yards to Its track 
(unfenced) and was injured, held that the 
license (if any) to play on the sleepers did 
not extend to the tracks ; [1912] 1 K. B. 525. 
But where large gas pipes were so left as to 
be movable by children and a child was kill- 
ed by one of them rolling on him, it was 
held to be a "death trap" and that the owner 
was liable; O'Hara v. Gaslight Co., 131 Mo. 
App. 428, 110 S. W. 642. 

In Cincinnati &amp; H. S. Co. v. Brown, 32 Ind. 
Appi 58, 69 N. E. 197, a child while playing 
in a grove, situated partly on defendant's 
and partly on adjacent lands, was injured 
by running into a barbed wire, a remnant of 
a fence that originally separated the defend- 
ant's land from the rest of the grove. The 
defendant knew of the condition of the prop- 
erty and the habit of the children playing in 
the grove. It was held that the question of 
the defendant's negligence and the plaintifC's 
contributory negligence should be left to the 
jury. The thing which attracts the children, 
namely, the grove, unlike the turntable, is, 
not dangerous in itself nor the instrument of 
injury, nor is it an artificial structure main- 
tained by the land owner. See 11 H. L: Rev. 
349. 

The law recognizes that under some cir- 
cumstances the omission of a duty owed by 
one individual to another will make the oth- 
er chargeable with the consequences; the 
rule is based upon the proposition that the 
duty neglected must be a legal duty, imposed 
by law or by contract, and not a mere moral 
obligation; People v. Beardsley, 150 Mich. 
206, 113 N. W. 1128, 13 L. R. A. (N. S.) 1020, 
121 Am. St. Rep. 617, 13 Ann. Cas. 39. 

Where one is in a house by express invita- 
tion and becomes violently ill, the defendants 
owe him the duty, upon discovering his phys- 
ical condition, to exercise reasonable care 
not to expose him to danger by sending him 
from their home; and if defendants knew 
and appreciated his physical condition, their 
conduct amounts to negligence; Depue v. 
Flatau, 100 Minn. 299, 111 N. W. 1, 8 L. R. 
a.. (N. S.) 485. But where plaintiff was taken 
ill with an infectious disease while visiting 
the janitor in defendant's apartment house, 
and defendant ordered her from the house, 
and plalntifE, being unable to hire an ambu- 
lance, made use of the street ears and by 
walking reached her own home, where she 
immediately became worse, it was held that 
defendant violated no legal duty to plaintiff, 
it being as much his duty to look out for his 
tenants as to look out for her; Tucker v. 
Burt, 152 Mich. 68, 115 N. W. 722, 17 I* R 
A. (N. S.) 510. 



NEGLIGENCE 



2327 



NEGLIGENCE 



In case of a person falling overboard from 
a sMp at sea, whether a passenger or sea- 
man, where he is not killed by the fall, the 
captain is bound both by law and by con- 
tract to do everything, consistent with the 
safety of the ship and of the passengers and 
crew, necessary to his rescue, no matter 
what delay in voyage may be occasioned, or 
what expense to the owners may be in- 
curred ; U. S. V. Knowles, 4 Sawy. 519, Fed. 
Cas. No. 15,540. If a guest in a hotel by 
reason of intoxication is troublesome to the 
other guests, the proprietor may rightfully 
put him out of the house, using no unneces- 
sary force or violence. If, however, the 
trouble and disturbances caused by the guest 
are due to sickness, he must be treated with 
the consideration due to a sick man, and if 
he is removed, such removal must be in a 
manner suited to his condition; McHugh v. 
Schlosser, 159 Pa. 480, 28 Att. 291, 23 L. R. 
A. 574, 39 Am. St Rep. 699. 

Violation of Ordinance. When does the 
violation of a criminal statute or ordinance 
make the wrongdoer civilly responsible? 
Sometimes it Is said that the wrongful act 
Is "negligence per se"; sometimes that it is 
only "evidence of negligence" ; sometimes 
again that it is "prima facie evidence of 
negligence." See Jaggard, Torts S 203. Dan- 
ger, reasonably to be foreseen at the time of 
acting, is the established test of negligence. 
The proposition, then, that the defendant is 
under a "duty of care" to certain persons in 
a certain situation means that as to them 
he acts at peril if he does dangerous things 
carelessly. 

Does an ordinance or statute change this 
situation? Before its passage the common 
law liability was for negligent conduct; 
"negligent" meant "dangerous" ; the test of 
danger was the foresight of the prudent 
man; the jury, within the territory where 
opinions could reasonably differ, was to say 
what he should have foreseen ; outside this 
territory the question was for the court 
The ordinance narrows the last question; 
Monroe v. R. Co., 76 Conn. 201, 56 Atl. 498; 
Osborne v. McMasters, 40 Minn. 103, 41 N. 
W. 543, 12 Am. St Rep. 698; Smith v. Sup- 
ply Co., 32 Utah 21, 30, 88 Pae. 683. 

The court can no longer submit the ques- 
tion of danger to the jury, because there is 
no longer room for a reasonable difference 
of opinion ; Smith v. Supply Co., supra. The 
ordinance has foreclosed the question wheth- 
er the specified act is a dangerous thing. 
This can only mean that the act is labelled 
"dangerous." 

As society develops, new dangers to the 
public welfare are constantly perceived, and' 
new prohibitions enacted by the legislature. 
They may be regulations of highway traffic, 
the position of vehicles on the highway ; 
Newcomb v. Protective Dep't, 146 Mass. 596, 
16 N. B. 555, 4 Am. St Rep. 344 ; the speed 
at which they may run; U. S. Brewing Co. 



V. Stoltenberg, 211 111. 531, 71 N. B. 1081; 
tjie conduct of railways at crossings; Hol- 
man V. R. Co., 62 Mo. 562 ; or building laws 
passed to lessen fire risks ; Aldrlch v. How- 
ard, 7 R. I. 199; or restrictions on the use 
of dangerous articles, such as the carrying 
of fire-arms by children; Horton v. Wylie, 
115 Wis. 505, 92 N. W. 245, 95 Am. St Rep. 
953; or the sale of poisons unlabeled; Os- 
borne V. McMasters, 40 Minn. 103, 41 N. W. 
543, 12 Am. St Rep. 698; or handling ex- 
plosives without specified precautions ; Bran- 
nock V. Elmore, 114 Mo. 55, 21 S. W. 451. 
Whatever form the prohibition may take 
(and the varieties are Infinite) a danger has 
been deemed by the legislature so great as 
to justify making its creation or continuance 
a pubUc wrong. A new statutory "nuisance" 
has thus been created In every sense In 
which that word has legal significance; and 
the proposition that he who violates the stat- 
ute or ordinance does so at his peril Is only 
an applica.tion of the principle that an ac- 
tion lies in favor of one who has suffered a 
private injury from a public nuisance. 

The prior cases were under statutes for- 
bidding objectionable conduct and punishing 
one who does the forbidden act But sup- 
pose the statute calls for action, and pun- 
ishes a failure to do the thing required. In 
Dawson &amp; Co. v. Bingley Urban District 
Council, [1911] 2 K. B. 149, the defendant was 
a municipal board charged with the duty of 
furnishing water for fire protection, and 
among other things providing proper fire 
plugs and putting up signs In the street to 
show their situation. They put up the sign 
in the wrong place and this delayed the fire 
brigade in hunting for the plug while plain- 
tiffs building was burning. The court held 
defendant liable for plaintiff's additional 
damage during this delay. In Couch v. 
Steel, 3 B. &amp; B. 402, defendant was held Ua- 
ble for damage for breach of a statute re- 
quiring medicines to be kept on shipboard. 
In Evans v. R. Co., 109 Minn. 64, 122 N. W. 
876, 26 L. R. A. (N. S.) 278, a carrier which 
had brought Into the state a diseased horse 
without complying with the inspection laws, ' 
was held liable to a purchaser from the con- 
signee. 

See Res Ipsa Loquitub. 

One who leaves a horse unhitched In a 
street In "which cars using snow scrapers are 
running cannot hold the street car company 
liable for injury to the horse due to its being 
frightened and dashing in front of a car; 
Moulton V. Ry., 102 Me. 186, 66 Atl. 388, 10 L. 
R. A. (N. S.) 845. The owner takes the risk 
of what the horse may do and such act 
raises a presumption of negligence, and puts 
upon him the burden of shovnng circum- 
stances which justified or excused It; Stev- 
enson V. Exp. Co., 221 Pa. 59, 70 Atl. 275, 128 
Am. St Rep. '725; Doherty v. Sweetser, 82 
Hun 556, 31 N. Y. Supp. 649 ; and he is Ua- 
ble for any damage caused by the horse run- 



NEGLIGENCE 



2328 



NEGOTIABLE 



ning away ; Corona O. &amp; I. Co. v. White, 158 
Ala. 627, 48 South. 362, 20 L. K. A. (N. S.) 
958. It is negligent for the driver of a 
horse to abandon his seat and run after his 
hat in the street without fastening or other- 
wise securing the animal; Damonte v. Pat- 
ton, 118 La. 530, 43 South. 153, 8 L-. R. A. 
(N. S.) 209, 118 Am. St. Bep. 384, 10 Ann. 
Cas. 862. 

An employer is liable for the negligence of 
a servant who, while driving the master's 
horse within the -scope of his employment, 
negligently leaves him standing unhitched, 
and the horse runs away and injures a third 
person who is lawfully upon the highway; 
Hayes v. Wllkins, 194 Mass. 223, 80 N. E. 
449, 9 L. R. A. (N. S.) 1033, 120 Am. St. 
Bep. 549. 

See CHABi'nABi.E Uses (as to liability of 
hospitals, etc.) ; Causa Peoxima non Bb- 
MOTA Spectatde; Common Caebiers; Death; 
Blevatobs ; Employers' Liability Acts ; 
Grade CImdssings ; Independent, Oontrac- 
TOES; Master and Servant (as to assump- 
tion of risk) ; Bailboads ; Ees Ipsa Loqui- 
tur. 

NEGLIGENT ESCAPE. The omission on 
the part of a gaoler to take such care of a 
prisoner as he is bound to take, when in 
consequence thereof the prisoner departs 
from his confinement without the knowledge 
or consent of the gaoler, and eludes pursuit. 

For a negligent escape, the sherifE or 
keeper of the prison is liable to punish- 
ment, in a criminal case; and in a civil 
case he is liable to an action for damages 
at the suit of the plaintifC. In both cases 
the prisoner may be retaken; 3 Bla. Com. 
415. See Escape. 

NEGOTIABLE. In Mercantile Law. A 

term applied to a contract, the right of ac- 
tion on which is capable of being transferred 
by indorsement (of which delivery is an es- 
sential part)., in case the undertaking is to 
A or his order, A or his agent, and the like, 
or by delivery alone, in case the undertaking 
is to A or bearer, — the assignee in either 
case having a right to sue in his own name. 

That which is capable of being trans- 
ferred, by assignment, indorsement, or by 
delivery. Vietor v. Johnson, 148 Pa. 583, 24 
Atl. 173. 

Complete negotiability involves Ihe right 
of the assignee to sue in his own name and 
take free of equities against the assignor; 
L. B. 8 Q. B. 874. 

At common law, ehoses in action were 
not assignable; but exceptions to this rule 
have grown up by mercantile usage as to 
some classes of simple contracts, and oth- 
ers have been introduced by statute, so that 
now bills of exchange, promissory notes, 
and bank-notes, to order or bearer, are uni- 
versally negotiable; and notes not to order 
or bearer have become qxiasi negotiable; 
that is, an Indorsement will give a right of 



action In the name of the assignor; and In 
some states, by statute, bonds and other 
specialties are assign.«ible by indorsement. 
See Assignment. 

- NEGOTIABLE INSTRUMENTS. Besides 
notes, bills, and checks, the following have 
been held to be negotiable instruments : ex- 
chequer bills ; 4 B. &amp; Aid. 1 ; 12 CI. &amp; F. 787, 
805; state and municipal bonds; 3 B. &amp; C. 
45 ; Cromwell v. Sac County, 96 U. S. 51, 24 
L. Ed. 681 ; Independent School Dist. v. Hall, 
113 U. S. 135, 5 Sup. Ct. 371, 28 L. Ed. 954; 
corporate bonds; L. B. 3 Ch. App. 758, 154; 
White V. R. Co., 21 How. (U. S.) 575, 16 L. 
Ed. 221 ; [1892] 3 Ch. 527 ; coupon bonds of 
an individual; In re Leland, 6 Ben. 175, Fed. 
Cas. No. 8,229,; coupon bonds of a corpora- 
tion; Kenosha V. Lamson, 9 Wall. (U. S.) 
477, 19 L. Ed. 725 ; Evertson v. Bank, 66 N. 
T. 14, 23 Am. Bep. 9 ; Beaver County v. Arm- 
strong, 44 Pa. 63; government scrip; L. B. 
10. Ex. 337; Unitpd States treasury notes; 
Vermilye v. Exp. Co., 21 Wall. (U. S.) 138, 
22 L. Ed. 609 ; Dinsmore v. Duncan, 57 N. Y. 
573, 15 Am. Bep. 534; post-office orders; 65 
L. T. 52; certificates of deposit; Miller v. 
Austen, 13 How. (U. S.) 218, 14 L. Ed. 119; 
First N. Bk; V. Bank, 34 Neb. 71, 51 N. W. 
305, 15 L. B. A. 386, 33 Am. St. Bep. 618; 
debentures of Umited companies; [1898] 2 Q. 
B. 658; bonds of foreign governments; 3 B. 
&amp; C. 45. 

The following have been held not to be ne- 
gotiable: lottery tickets; 8 Q. B. 134; divi- 
dend warrants; 9 Q. B. 396; iron scrip notes; 
3 Macq. 1; debentures, on which authorities 
differ; L. B. 8 Q. B. 374; pass-book of sav- 
ings bank; McCaskill v. Bank, 60 Conn. 300, 
22 Atl. 568, 13' L. B. A. 737, 25 Am. St. Rep. 
323; a treasury warrant not presented for 
three years, the amount having been covered 
back into the treasury; Harris v. U. S., 27 
Ct. Cls. 177. 

Bills of lading are not properly negotiable 
instruments, but they may be called so in- a 
limited sense as against stoppage in transitu 
only; Poll. Contr. 207. 

An instrument in the form of a promissory 
note drawn by a corporation, and bearing its 
seal, is not a promissory note negotiable by 
the law merchant; per Blatchford, J., in Coe 
V. B. Co., 8 Fed. 534. 

Any addition. to the form of a note which 
destroys its essential quality of a promise 
to pay, "simple, certain, unconditional, not 
subject to any contingency," will destroy its 
negotiable character; Woods v. North, 84 
Pa. 409, 24 Am. Bep. 201. Thus, the addi- 
tion of the words, "given as collateral securi- 
ty with agreement;" Costelo v. Crowell, 127 
Mass. 293, 34 Am. Rep. 367; "a warrant to 
confess judgment;" Sweeney v. Thickstun, 
77 Pa. 131 ; "in facilities ;" Springfield Bank 
V. Merrick, 14 Mass. 322; "foreign bills;" 
Jones V. Fales, 4 Mass. 245; "and it is the 
understanding it will be renewed at maturi- 



NEGOTIABLE INSTRUMENTS 2329 NEGOTIABLE INSTRUMENTS 



ty;" Citizens N. Bk. v. Piollet, 126 Pa. 195, 
17 Atl. 603, 4 L. R. A. 190, 12 Am. St. Rep. 
860; "Return notice ticket with this order," 
and "deposit book must be at bank before 
money can be paid;" Iron City N. Bk. v. 
McCord, 139 Pa. 53, 21 Atl. 143, 11 L. 
R. A. 559, 23 Am. St. Rep. 166; "with ex- 
change;" in varying forms with respect 
to place ; Hughitt v. Johnson, 28 Fed. 865 ; 
Windsor S. Bk. v. McMahon, 38 Fed. 283, 
3 Li. R. a. 192; 23 U. C. C. P. 503; Flagg 
V. School District, 4 N. D. 30, 58 N. W. 
499, 25 L. R. A. 363; Nicely v. Bank, 15 
Ind. App. 563, 44 N. E. 572, 57 Am. St. Rep. 
245 ; contra, Bullock v. Taylor, 39 Mich. 137, 
33 Am. Rep. 356; Bradley v. Lill, 4 Biss. 473, 
Fed. Cas. No. 1,783 ; with counsel fees, ex- 
penses of collection, or other words to the 
same effect; First N. Bk. v. Bynum, 84 N. 
C. 27, 37 Am. Rep. 604 ; First N. Bk. v. Gay, 
63 Mo. 35, 21 Am. Rep. 480; Hardin v. Olson, 
14 Fed. 705; First N. Bk. v. Larsen, 60 Wis. 
206, 19 N. W. 67, 50 Am. Rep. 365 ; Sperry 
V. Horr, 32 la. 184; Schlesinger v. Arline, 
31 Fed. 649. 

A note containing a tax clause is not ne- 
gotiable; Brooke v. Struthers, 110 Mich. 562, 
68 N. W. 272, 35 L. R. A. 537; McClelland 
V. R. Co., 110 N. Y. 469, 18 N. E. 237, 1 L. 
R. A. 299, 6 Am. St. Rep. 397; nor is one 
given for rent and subject to set-off for re- 
pairs; Jones V. Laturnus (Tex.) 40 S. W. 
1010. 

Contracts are not necessarily negotiable 
because by their terms they inure to the 
benefit of the bearer. Hence, a receipt ac- 
knowledging that a person has received from 
another named so many shares of stock in a 
specified corporation, entitling the bearer to 
so many dollars in certain bonds to be issued, 
is not free in the hands of a transferee from 
equities which would have affected it in the 
hands of the original recipient; Chicago, R. 
I. &amp; P. R. Co. V. Howard, 7 Wall. (U. S.) 
392, 19 L. Ed. 117. 

Indorsements of payment on a promissory 
note before delivery do not destroy negotia- 
bility; Smith V. Shippey, 182 Pa. 24, 37 Atl. 
844, 38 L. R. A. 823. 

The rule in Illinois that a negotiable note, 
secured by a mortgage, transferred to a T)ona 
flde holder before maturity, is held subject 
to all equities between the original parties, 
is not binding on the federal courts,' which 
hold in such cases that in a suit in equity 
brought to foreclose the mortgage, no other 
defences are allowed against it than would 
be allowed in an action at law to recover on 
the notes ; Swett v. Stark, 31 Fed. 858. Cou- 
pons attached to a railroad bond and payable 
to bearer, when detached and negotiated, are 
no longer incidents of the bond, but inde- 
pendent negotiable instruments; Internal 
Imp. Fund v. Lewis, 34 Fla. 424, 16 South. 
325, 26 L. R. A. ■ 743, 43 Am. St. Rep. 209. 
See Coupons. 
"By the decisive weight of authority in 



this country where negotiable paper has been 
put In circulation, and there is no infirmity 
or defence between the antecedent parties 
thereto, a purchaser of such securities is en- 
titled to recover thereon, as against the 
maker, the whole amount, irrespective of 
what he may have paid therefor." Wade v. 
R. Co., 149 U. S. 327, 13 Sup. Ct. 892, 37 L. 
Ed. 755. See Fowler v. Strickland, 107 Mass. 
552; Bange v. Flint, 25 Wis. 544; National 
Bk. of Michigan v. Green, 33 la. 140. 

All the states, territories, etc., have passed 
the Uniform Negotiable Instruments Act, 
except CaUfomia, Georgia, Maine, Missis- 
sippi, Texas, and Porto Rico. Under this 
act an instrument, to be negotiable, must be 
In writing and signed; must contain an un- 
conditional promise or order to pay a certain 
sum of money on demand at a fixed and de- 
terminable future time; it must be payable 
to order or to bearer, and where it is ad- 
dressed to the drawee, he must be named or 
otherwise indicated vrith reasonable certain- 
ty ; its negotiability is not affected by the 
fact that it is not dated, or that it bears a 
seal, or that it does not specify the value 
given or that any value was given. 

The sum payable is certain within the act, 
although it is to be paid with interest, or 
by stated Instalments, with the provision 
that, upon default in the payment of any in- 
stalment or interest, the whole sum becomes 
payable, or if payable with exchange or 
with costs of collection or an attorney's fee. 
It may be payable to the order of a speci- 
fied person, or to him, or his order. A note 
payable to the maker's order is not negotia- 
ble till he endorses it. It may be payable to 
the holder of an oflSce. 

Negotiability is not affected if the instru- 
ment authorizes the sale of collateral securi- 
ty ; or a confession of judgment on default ; 
or waives the benefit of any law intended 
for the obligor's benefit; or gives the holder 
an election to require something to be done in 
lieu of payment of money. 

Warehouse receipts and bills of lading are 
said to be usually treated as only quasi ne- 
gotiable instruments on the ground that they 
do not contain a sufficiently definite promise 
and are not payable in money; Sel. Neg. 
Inst § 34. In some states receipts issued by 
certain warehouse and storage companies 
are still negotiable, for the statute giving 
them negotiability was not repealed by' the 
Negotiable Instruments Act ; Hanover N. Bk. 
V. Trust Co., 148 N. Y. 612, 43 N. E. 72, 51 
Am. St. Rep. 721. In Wisconsin warehouse 
receipts, bills of lading and railroad receipts 
are negotiable unless the words "not nego- 
tiable" are plainly written, printed or stamp- 
ed on the face of the Instrument. A certifi- 
cate of deposit payable to the order of the 
depositor is negotiable; Birch v. Fisher, 51 
Mich. 36, 16 N. W. 220; Pardee v. Fish, 60 
N. Y. 265, 19 Am. Rep. 176; Johnson v. Hen- 
derson, 76 N. C. 227. 



NEGOTIABLE INSTKUMENTS 



2330 



NEGOTIABLE INSTRUMENTS 



A note promising to pay a certain sum "to 
be allowed at my decease," is negotiable ; 
Martin v. Stone, 67 N. H. 367, 29 Atl. 845; 
and one payable "sixty days after my death"; 
Crider v. Shelby, 95 Fed. 212 ; and one paya- 
ble "on demand after my decease" ; Bristol 
V. Warner, 19 Conn. 7. 

But instruments payable on a contingency 
are not negotiable, and the happening of the 
contingency does not cure the defect; as an 
instrument payable when one shall become 
of age; Kelley v. Hemmingway, 13 111. 604. 
56 Am. Dec. 474; or be elected to a certain 
office; Cooper v. Brewster, 1 Minn. 94 (Gil. 
73) ; or when a certain estate shall be settled; 
Husband v. BpUng, 81 111. 172, 25 Am. Rep. 
273. 

It has been a recognized rule that Instru- 
ments payable at a fixed period after date 
or . sight, though payable before then on a 
contingency, are sufficiently certain to be 
negotiable; Stevens v. Blunt, 7 Mass. 240;- 
Thorp V. Mindeman, 123 Wis. 149, 101 N. W. 
417, 68 L. R. A. 146, 107 Am. St. Rep. 1003. 

That letters of credit "possess a real nego- 
tiability when they relate to bills of ex- 
change," see 2 Dan. Neg. Inst. § 1798. 

A receiver's certificate is not negotiable; 
Turner v. R. Co., 95 111. 134, 35 Am. Rep. 
144; nor a passbook issued by a savings 
bank; Smith v. Bank, 101 N. T. 58, 4 N. B. 
123, 54 Am. Rep. 653; nor municipal war- 
rants and orders; Stanton v. Shipley, 27 
Fed. 498. 

Instruments payable In services are not; 
Quinby v. Merritt, 11 Humph. (Tenn.) 439; 
or in merchandise; Gushee v. Eddy, 11 
Gray (Mass.) 502, 71 Am. Dec. 728; Tib- 
bets V. Gerrish, 25 N. H. 41, 57 Am. Dec. 
307 ; or in the alternative, in money or 
merchandise; Thompson v. Gaylard, 3 N. C. 
150 ; or In money or bank stock ; Alexander 
V. Oaks, 19 N. C. 513. 

A provision in a note, otherwise negotia- 
ble, that the title to the property for which 
it was given shall remain in the vendor un- 
til the note is paid, has been held to be not 
negotiable under the Negotiable Instruments 
Act; Third N. Bk. v. Spring, 28 Misc. 9, 59 
N. Y. Supp. 794; but the rule is generally 
that such a provision will not destroy nego- 
tiability; Chicago R. Equipment Co. v. Bank, 
136 U. S. 268, 10 Sup. Ct. 999, 34 L. Ed. 349 ; 
First N. Bk. v. Slaughter, 98 Ala. 602, 14 
South. 545, 39 Am. St. Rep. 88; Choate v. 
Stevens, 116 Mich. 28, 74 N. W. 289, 43 L. R. 
A. 277. 

The negotiable character of an instrument 
is not affected by the fact that it designates 
a particular kind of current money in which 
payment is to be made; thus an instrument 
is payable in money if payable in "pounds 
sterling"; King v. Hamilton, 12 Fed. 478; 
or in cash notes; Ward v. Lattimer, 2 Tex. 
245; or in gold dollars; Chrysler v. Renois, 
43 N. T. 209 ; or in Mexican silver dollars ; 
Hogue v. Williamson, 85 Tex. 553, 22 S. W. 



580, 20 L. R. A. 481, 34 Am. St. Rep. 823 j 
but is not payable in money if payable in 
bank stock; Markley v. Rhodes, 59 la. 57, 
12 N. W. 775; or in current bank notes; 
State V. Oorpening, 32 N. C. 58; or in cur- 
rent funds ; Wright v. Harf s Adm'r, 44 Pa. 
454 (contra, Bull v. Bank, 123 U. S. 105, 8 
Sup. Ct. 62, 31 L. Ed. 97) ; or in currency; 
Ruidskoff V. Barrett, 11 Ohio 172 (contra^ 
Butler V. Paine, 8 Minn. 324 [Gil. 284]). 

A note payable at New York in New York 
funds or their equivalent is not negotiable 
because the term "New York funds," it is 
presumed, may embrace stocks, bank notes, 
specie and every description of currency 
which is used in commercial transactions;. 
Hasbrook v. Palmer, 2 McLean 10, Fed. Gas. 
No. 6,188 ; but a note payable in bank notes 
current in the city of New York was held 
negotiable; Keith v. Jones, 9 Johns. (N. Y.) 
120; so also a note payable in "York State 
bills or specie" ; Judah v. Harris, 19 Johns. 
(N. Y.) 144. See Selover, Neg. Instr. § 41. 

In the absence of statute, bills and notes 
are treated as choses in action and are not 
subject to levy and sale on execution, but by 
statute in many states it is now othervirise; 
1 Freem. Ex. § 112; Brown v. Anderson, 4 
Mart. N. S. (La.) 416. It is held that a 
note may be made the subject of seizure and 
delivery In a replevin suit ; Smith v. Eals, 81 
la. 235, 46 N. W. 1110, 25 Am. St. Rep. 486. 
That bills and notes are governed by the 
designation of "goods and chattels" in the 
statute of frauds and other statutes, see 2 
Ames, Bills and Notes 706. They are goods, 
wares and merchandise; Baldwin v. Wil- 
liams, 3 Mete. (Mass.) 365; Somerby v. 
Buntin, 118 Mass. 279, 19 Am. Rep. 459; and 
are the subject of conversion ; 3 Campb. 477. 
They may be the subject of a donatio causa 
mortis, even though payable to order and un- 
indorsed; 2 Ames, Bills and Notes 699. 
Bonds and negotiable instruments are more 
than mere evidences of debt. The debt is in- 
separable from the paper which declares and 
constitutes it by a tradition which comes 
down from more archaic conditions ; Black- 
stone V. Miller, 188 U. S. 206, 23 Sup. Ct. 277, 
47 L. Ed. 439; Bacon y. Hooker, 177 Mass. 
335, 58 N. E. 1078, 83 Am. St. Rep. 279. 

As to the early history of negotiable in- 
struments, see Jenks, in 9 L. Q. R. 70 (3 
Sel. Essays in Anglo-Amer. L. H. 51). As 
to the Negotiable Instruments Acts, see A. 
M. Baton In 12 Mich. L. Rev. 89. 

See Promissoet Notes ; Bills of Ex- 
change ; Bond ; Coupons ; Daniel, Neg. Instr. 
(Calvert's Ed. 1913); Selover, Neg. Instru- 
ments. 

NEGOTIATE. The power to negotiate a 
bill or note is the power to indorse and de- 
liver it to another, so that the right of action 
thereon shall pass to the indorser or holder. 
Weckler v. Bank, 42 Md. 581, 20 Am. Rep. 
95; see Yerkes v. Bank, 69 N. Y. 386, 25 



NEGOTIATE 



2331 



NEGRO 



Am. Eep. 208; or, In case of such instru- 
ment payable to bearer, to deliver it. A note 
transferred by delivery is negotiated ; Lowrie 
V. Zunkel, 49 Mo. App; 153. A national 
bank, under the power to negotiate evi- 
•dences . of debt, may exchange government 
bonds for registered bonds; Terkes v. Bank, 
•69 N. T. 383, 25 Am. Rep. 208. 

NEGOTIATION. The deliberation which 
takes place between the parties touching a 
proposed agreement. 

That which transpires In the negotiation 
makes no part of the agreement, unless in- 
troduced into it. It is a general rule that 
no evidence can be given to add to, dimin- 
ish, contradict, or alter a written instru- 
ment ; Leake, Contr. 26 ; McDermott v. Ins. 
Co., 3 S. &amp; R. (Pa.) 609. But this rule has 
been much modified, and parol evidence is 
now held admissible to contradict, vary, or 
even avoid a written instrument where it 
would hot have been executed but for the 
oral stipulation, except in the case of nego- 
tiable paper; Hoopes v. Beale, 90 Pa. 82. 
■See Evidence. 

As to negotiations precediQg a contract, 
see Mebgee. 

In Mercantile Law. The act by which a 
bill of exchange or promissory note is put 
into cicculatlon by being passed by one of 
the original parties to another person. 

The transfer of a bill or note in the form 
and manner prescribed by the law mer- 
chant, with the Incidents and privileges an- 
nexed thereby, i. e.: 

The transferee can sue all parties to the 
instrument in his own name; 

The consideration for the transfer is pri- 
ma facie presumed; 

The transferor can under certain condi- 
tions give a good title, although he has 
none himself; 

The transferee can further negotiate the 
bill with the like privileges and incidents. 

There are two- modes of negotiation, viz. : 
by delivery and by indorsements. The for- 
mer applies to bills, etc., payable to bearer; 
the latter to those payable to order. See 
&lt;3halm. Dig. of Bills, etc. § 106; 1 Pars- 
Notes &amp; B. 14; Byles, Bills 169. 

Until an accommodation bill or note has 
been negotiated, there is no contract, which 
can be enforced on the note ; 2 M. &amp; G. 911. 

NEGOTIORUM GESTOR (Lat). In Civil 
Law. One who spontaneously, and without 
authority, undertakes to act for another, 
during his absence. In his affairs. 

In cases of this sort, as he acts wholly 
without authority, there can, strictly speak- 
ing, be no contract; but the civil law raises 
a quasi mandate by implication for the 
benefit of the owner, in many such cases; 
Mackeldey, Civ. Law, § 460; 2 Kent 616, 
n.; Story, Bailm. §§ 82, 189. 

NEGRO. A black man descended from 
the black race of Southern Africa; it has 



been held not to Include a mulatto ; Felix v. 
State, 18 Ala. 726. A negro is defined by 
statute in Alabama, Kentucky, Maryland, 
Mississippi, North Carolina, Tennessee and 
Texas as a person of color who is descended 
from a negro to the third generation inclu- 
sive, though one ancestor in each generation 
may have been white; in Florida, Georgia, 
Indiana, Minnesota, Missouri and South 
CaroUna, where there is as much as one- 
eighth negro blood ; in Nebraska and Oregon, 
one-fourth, and so apparently in Virginia 
and Michigan. It was held in Monroe v. 
Collins, 17 Ohio St. 665, that if white blood 
predominates the person Is to be consid- 
ered white. If one was a slave before 
1865, it is presumed that he is a negro; 
McMillan v. School Committee, 107 N. C. 
609, 12 S. E. 330, 10 L. R. A. 823; if it 
appears that a person usually associates 
with negroes, it is evidence that he is one; 
Hopkins v. Bowers, 111 N. C. 175, 16 S. E. 1 ; 
and if it appears that a woman's first hus- 
band was a white man, it is evidence tend- 
ing to prove that she is a white woman ; Bell 
v. State, 33 Tex. Cr. R. 163, 25 S. W. 769. 

Compelling a sheriff with a negro prisoner 
to ride in a negro coach is not actionable; 
Gulf, C. &amp; S. F. E. Co. v. Sharman (Tex.) 
158 S. W. 1045. An ordinance making it un- 
lawful for a colored person to reside upon a 
street where the greater number of houses 
are occupied by whites, is invalid; State v. 
Darnell (N. C.) 81 S. E. 338. 

See 43 Am. L. Rev. 29, where the subject of 
Race Distinctions Is fully treated by Gilbert 
S. Stephenson (since published in book 
form). 

See Mixed Jitbt; Civil Rights; Miscege- 
nation; Equal Pkotection op the Laws; 
Constitution op the United States ; White 
Pebsons. 

NEIFE, NAIF, NATIVUS. In Old English 
Law. A woman who was bom a villein, or 
a bond-woman. 1 Steph. Com. 133. 

NEIGHBOR. One who lives in close 
proximity to another. In a grant relating 
to the use of water by neighbors, it was lim- 
ited to the next adjoining farm; 1 A. C, 22 
(So. Africa). 

NEIGHBORHOOD. A surrounding or ad- 
joining district. It depends upon no arbi- 
trary rule of distance or topography. The 
neighborhood of a person will cover a larger 
space In a sparsely settled country than in a 
city; State v. Jungllng, 116 Mo. 162, 22 S. 
W. 688. See Peters v. Boumeau, 22 lU. App. 
179 ; Langley v. Bamstead, 63 N. H. 246. 

It is not synonymous with territory or dis- 
trict, but is a collective noun, with the sug- 
gestion of proximity, and refers to the units 
which make up its whole, as well as to the 
region which comprehends those units. A 
district or locality, especially when consider- 
ed with relation to its inhabitants or their 



NEiaHBORHOOD 



2332 



NET PROFITS 



interests. Lindsay Irr. Co. v. Mehrtens, 97 
Cal. 676, 32 Pac. 803. 

NEIHINE CONTRA DICENTE (usually ab- 
breviated nem. con. ) . Words used to signi- 
fy the unanimous consent of the house to 
which they are applied. In ISngland, they 
are used in the house of commons; in the 
house of lords, the words used to convey the 
same idea are nemine dissentiente. 

NEPH£W. The son of a brother or sis- 
ter. Ambl. 514; 1 Jac. 207. 

The Latin nepos, from which nephew is 
derived, was used in the civil law for neph- 
ew, but more properly for grandson ; and we 
accordingly find neveu, the original form of 
nephew, in the sense of grandson. Britton, 
c. 119. 

According to the civil law, a nephew is 
in the third degree of consanguinity ; accord- 
ing to the common law, in the second; the 
latter is the rule of common law; 2 Bla. 
Com. 206. But in this country the rule of 
the civil law is adopted; 2 Hill, R. P. 194. 

Nephews and nieces may be shown by cir- 
cumstances to include grand-nephews and 
grand-nieces, and even a great-grand-niece; 
In re Logan, 131 N. X. 456, 30 N. E. 485 ; but 
in a bequest, would not include, without spe- 
cial mention, nephews and nieces by mar- 
riage ; Appeal of Green, 42 Pa. 25. See Leg- 
act. 

NEPOS (Lat.). A grandson. See Nephew. 

NEPTIS (Lat.). Granddaughter; some- 
times great-granddaughter. Calv. Lex. ; Vi- 
cat, Voc. Jur. See Leqact. 

NET. Clear of all charges and deduc- 
tions; that which remains after the deduc- 
tion of all charges or outlay, as net profit. 
St. John V. R. Co., 22 Wall. (U. S.) 148, 22 
L. Ed. 743. 

The- exact weight of an article, without 
the bag, box, keg, or other thing in which it 
may be enveloped. 

NET BALANCE. In commercial usage it 
means the balance of the proceeds after de- 
ducting the expenses incident to the sale. 
Evans v. Wain, 71 Pa. 74. , 

NET EARNINGS. The excess of the gross 
earnings over the expenditures defrayed in 
producing them, aside from, and exclusive 
of, the expenditure of capital laid out in con- 
structing and equipping the works them- 
selves. Union P. R. Co. v. U. S., 99 U. S. 420, 
25 L. Ed. 274. See Barry v. R. Co., 27 Fed. 
1; St. John v. R. Co., 22 Wall. (U. S.) 148, 
22 L. Ed. 743; Sioux City &amp; P. R. Co. v. TJ. 
S., 110 U. S. 205, 3 Sup. Ct. 565, 28 L. Ed. 
120; Schmidt v. R. Co., 95 Ky. 289, 25 S. W. 
494, 26 S. W. 547. 

NET PROFITS. This term does not mean 
what is made over the losses, expenses, and 
interest on the amount invested; It includes 
simply the gain that accrues on the invest- 
ment, after deducting the losses and expens- 



es of the business. Tutt v. Land, 50 Ga. 350. 
See Park v. Locomotive Works, 40 N. J. Eq. 
114, 3 Atl. 162. See Pbofits. 

NETHER HOUSE OF PARLIAMENT. 

The house of commons so called in the time 
of Henry VIII. 

NETHERLANDS, THE. A monarchy of 
Europe. 

The first constitution after its reconstruc- 
tion as a Idngdom was given in 1815. It has 
been revised, especially in 1848 and in 1887. 
It is a constitutional and hereditary mon- 
archy. 

The executive power consists of the Sovereign, 
He has the command of the army and navy, the 
control of the colonies and the right to create 
nobles, etc. The Council of State of which the mem- 
bers are appointed by the Sovereign advises His 
Majesty. TTte Cabinet Ministers appointed by the 
Sovereign are responsible to the country. The First 
Chamber of the States-General consists of fifty 
members appointed by the Provincial States from 
the highest direct tax-payers and great func- 
tionaries and persons of high rank. The. Second 
Chamber consists of one hundred members elected 
by the male electors of the country. The Provin- 
cial States, elected by the male electors of the 
province, regulate the affairs of the province. The 
Parish Corporations, elected by the male electors 
of the parish, regulate, the affairs of the parish. 
Justice is administered in the name of the Sov- 
ereign. BeUgion is free. Taxes are decreed by the 
law. 

The judiciary consists of: 

1. The Court of the Canton, of which there are one 
hundred and six, each having its judge, who decides 
without appeal all cases of civil or commercial na- 
ture in which the flaim does not exceed fl. 50 ($20) ; 
and all criminal cases, subject to appeal, where the 
penalty does not exceed fl. 25 ($10). 2. The Arron- 
dissement (or District) Court, of which there are 
twenty-three having from Ave to twenty-four judges 
each. The higher courts are: 3. The Court of Jus- 
tice, of which there are five having from nine to 
twelve judges each, decides all appeals in civil, com- 
mercial and criminal cases from the Arrondisse- 
ment Court. 4.' The High Court of Justice, which 
has fourteen to sixteen judges and decides all cases- 
in which the Sovereign, or the Royal House, or the 
members of the States-General are the defendants; 
cases of appeal from the Courts of Justice ; all 
criminal cases in which high officials of the State 
are implicated ; and all cases outside the jurisdic- 
tion of the lower courts. 

The Netherlands law is based on the French law 
as introduced by Napoleon, and the earlier provin- 
cial law, which is tor the greater part of German 
origin. • 

NEUTRAL PROPERTY. Property which 
belongs to neutral owners, and is used, treat- 
ed, and accompanied by proper insignia as 
such. 

Where the insured party has property and 
commercial establishments and depositories 
in different countries, if the property and 
concern of any one are in, or belong to, a 
belligerent country, they wUl have the na- 
tional character of such country though the 
national character of the owner may be that 
of a neutral; 5 W. Rob. 302; The Antonia 
Johanna, 1 Wheat. (U. S.) 159, 4 L. Ed. 60. 
The declaration of war by a nation subse- 
quently to the time in reference to which 
the policy takes effect will, however, only 
afCect ownership thereafter acquired or acta 



NEUTRAL, PROPERTT 



2333 



NEUTRAIiITT 



thereafter done; 1 0. Rob. 107, 336; 6 id. 
364; The Fortuna, 3 Wheat (U. S.) 245, 4 
L. Ed. 379. 

The description of the subject in a policy 
of insumnce as neutral or belonging to neu- 
trals, is, aN in other cases, a warranty that 
the property is what it is described to be, 
and It must, accordingly. In order to comply, 
with the warranty not only belong to neutral 
owners at the time of malting the insurance, 
but must continue to be so owned during the 
period for which It is insured, and must, 
so far as it depends upon the assured, be 
accompanied by the usual insignia, as such, 
and in all respects represented, managed, and 
used as such; Livingston v. Ins. Co., 6 Cra. 
(U. S.) 274, 3 L. Ed. 222; 1 O. Rob. 26, 336; 
.2 id. 133, 218. 

NEUTRALITY. The state of a nation 
which takes no part between two or more 
other nations at war with each other. 

"The relation of neutrality will be found 
to consist in two principal circumstances : 
Entire abstinence from any participation in 
the war, and impartiality of conduct towards 
both belligerents." 3 Phill. Int L. 225. 
They remain the common friends of the bel- 
ligerents, favoring the arms of neither to the 
detriment of the other; 2 Halleck, Int. L., 
Baker's ed. 161. 

It has been said that there should be, on 
the part of a neutral state, not an impartiali- 
ty of action, but of nonaction ; MassS, Droit 
Com. 199. 

The rights and duties of neutral states 
may be classified as follows : 

Rights. The territory of neutral powers 
must not be violated by any acts of hostility 
between the two belligerents or by any acts 
on the part of either belligerent which are 
directly connected with the conduct of hos- 
tilities. Neutral powers may repel by force 
any such acts without thereby committing a 
hostile act. 

Duties. Passive duties. In all matters re- 
lating to the war a neutral must abstain in 
its official capacity from giving any help 
to either belligerent; It must not furnish 
troops or give or sell arms or munitions to 
either belligerent, nor make presents or 
loans of money, nor purchase belligerent 
ships, nor decide in its courts upon the va- 
lidity of belligerent captures, nor give ex- 
pression to its sympathy for either party. 
It must acquiesce in the exercise of the bel- 
ligerent's right of search, blockade, and cap- 
ture of contraband. 

Active duties. A neutral state must resist 
the commission of any act of hostility by 
either belligerent within its territories; it 
must prevent the issuance of commissions in 
the service of either belligerent, the enlist- 
ment of soldiers, the fitting out of hostile ex- 
peditions in its ports, and the preparation of 
military expeditions on land; It need not, 
however, prevent its individual subjects from 



leaving the country to enlist abroad, nor 
from exporting arms or ammunition to ei- 
ther belligerent, nor from making loans to 
either belligerent, nor from giving expres- 
sion to their sympathy for either party. 

On the other hand, belligerents have the 
right to interfere with neutral commerce by 
the capture of contraband (g. v.) and by 
blockade {q. v.), and they have the duty of 
refraining from committing within neutral 
territory any acts connected with hostile 
operations. 

There are certain acts of friendliness on 
the part of neutral towards belligerent 
states, such as the furnishing of warships 
with limited supplies of food, coal, etc., 
which are permitted in spite of the fact that 
they involve a certain amount of indirect 
assistance to the belligerents. But absolute 
impartiality must be observed towards both 
belligerents. 

It was formerly held that where a neutral 
has bound itself, by previous treaty, to one 
belligerent, assistance under such treaty does 
not necessarily forfeit its neutral character; 
but this doctrine is now rejected by the ma- 
jority of writers. 2 0pp. § 305. 

The idea of neutrality which, strictly 
speaking, consists of an abstention from any 
participation in a public, private or civil war, 
must not be so extended as to prevent the 
recognition of the belligerency of an insur- 
gent party in a foreign state, when the ex- 
tent of the insurrection calls for such recog- 
nition; and acts of war undertaken upon 
the territory of the United States in favor of 
foreign insurgents cannot be excused on the 
ground that the neutrality of the United 
atates prevents that govenmient from recog- 
nizing the belligerency of the insurgents to 
the extent of checking their hostile opera- 
tions upon its soil. See The Three Friends, 
166 U. S. 1, 17 Sup. Ct. 495, 41 L. Ed. 897. 
The recognition of the belligerency of in- 
surgents relieves the parent state from all 
responsibility for damages for any irregu- 
larities committed against neutrals by the 
other belligerent, which claims could be en- 
forced against the parent nation if the inju- 
ries were committed by insurgents. 

The public ships of a neutral are inviola- 
ble; and so are its private ships, subject, 
however, to laws relating to a breach of 
blockade, contraband, and search. Neutral 
territory, including the sea for a distance of 
three miles from low-water mark, is inviola- 
ble. If a ship is captured in neutral waters, 
in violation of neutrality, the neutral power 
is bound to enforce its restoration or compen- 
sate the injured belligerent; and, in general, 
a neutral is bound to prevent and punish a 
violation of its 'rights as a neutral by either 
belligerent; Halleck, Int. L., Baker's ed. 
143. These principles are now confirmed by 
13 H. C. (1907) arts. 1-3. 

Where a United States war vessel captured 
a Confederate steamer in a neutral port of 



NBtJTBALITY 



2334 



NBUTRAIiITT 



Brazil and brought it to a United States 
port, and It was there sunk by a collision, 
and the United States disavowed the action 
of Its ship in making the capture, It was 
held that as the capture was unlawful, or 
had been disavowed by the government, a 
libel for the captured vessel as prize of war 
could not be sustained; The "Florida," 101 
U. S. 37, 25 L. Ed. 898. A neutral may de- 
maud the return of a captured vessel and 
further redress. But where the vessel 
chooses to resist capture in neutral waters, 
its capture is not an oSence against the neu- 
tral; Cobb, Int. L.. Cas. 230; Hall, Int. L. § 
228. 

Where neutral territory is violated by 11- _ 
legal outfit and equipment, the offence is 
deposited after the termination of the voy- 
age ; The Santlsslma Trinidad, 7 Wheat. 283, 
348, 5 L. Ed. 454. A neutral ship should, 
ordinarily, submit to capture and seek its 
remedies In the courts for damage; 1 Rob. 
374. 

It has been suggested that a belligerent 
who has begun an attack on another bellig- 
erent outside of neutral territory or water 
may continue the contest within the neutral 
waters and completJe the capture; 5 C. Rob. 
365; but on the other hand it is said that 
the ■inviolability of neutral territory should 
allow of no exceptions, and that property 
captured under such circumstances must be, 
restored, though it actually belonged to the 
«nemy ; 5 C. Rob. 15 ; 3 Phill. Int. L. 386. 

It belongs exclusively to the neutral gov- 
ernment to raise the question of a capture 
made within neutral territory; The Adela, 
6 Wall. (U. S.) 266, 18 L. Ed. 821; the owner 
of the captured ship must assert his claim 
through his government; 1 Kent 121; an 
enemy cannot do so ; The Sir William Peel, 
5 Wall. (U. S.) 517, 18 L. Ed. 696; but when- 
ever a capture is made by a belligerent In 
violation of neutral rights, if the prize come 
voluntarily within the jurisdiction of the 
neutral, it should be restored to its original 
owner; 3 Phill. Int. L. 532; La Amistad de 
Rues, 5 Wheat. (U. S.) 385, 5 L. Ed. 115. 
See 13 H. C. (1907) arts. 12-20. 

A public vessel of a belligerent may enter 
a neutral port to make such repairs or to 
take in such coal and provisions as may be 
necessary; but the ordinary rule is that it 
must not remain more than twenty-four 
hours, except in case of necessity. 

A belligerent vessel may bring a prize 
into a neutral port and sell it there, with 
the consent of the neutral ; Hopner v. Apple- 
by, 6 Mas. 77, Fed. Cas. No. 6,699; and a 
neutral may permit a prize to be brought 
into its ports for repairs; 1 Op. Att. Gen. 
603 ; but neutrals may prohibit this and have 
often, by proclamation, done so; 2 Halleck, 
Int. L., Baker's ed. 148. 

Where a neutral allows the right of pas- 
sage through its territory to one belligerent. 
It must accord it to both; 3 Phill. Int. L. 



183; 1 Kent *120; 21 Bev. de Dr. Int. 117. 
The troops of a belligerent cannot cross neu- 
tral territory, nor can even the wounded be 
taken across neutral territory, without the 
express permission of the neutral, which, 
in the case of the Franco-Prussian War of 
1870, was refused by Belgium ; nor can a 
qeutral allow its ports and waters to be used 
as a base of operations or supplies, or as a 
point from wliich to watch the other belliger- 
ent. See 5 H. 0. (1907) arts. 1-2; 13 H. C. 
(1907) art. 5. 

The subjects of neutral states are entitled 
to carry on, upon their own account, a trade 
with a belligerent; this doctrine is well set- 
tled ; 3 Phill. Int L. 300. But it was consid- 
ered unlawful, under the common law, for an 
English subject to raise a loan to support 
the subjects of a foreign state at war with a 
government in alliance with his own; 3 
Phill. Int. L., 247; yet it now appears to be 
the opinion that, although the neutral state 
cannot loan money, yet the individual citi- 
zens of a neutral state may, and such loans 
are not considered a violation of neutrality 
any more than the sales of arnis and ammu- 
nition; Snow, Lect. Int. Law 119. But such 
loans to an insurgent state or colony have 
been considered unlawful; Risley, Law of 
War; 9 Moore, P. C. 586. 

A neutral will not permit a belligerent's 
ship to coal in its ports except in case of 
necessity, and then only to the extent nec- 
essary to carry them to their nearest home 
port ; and a belligerenb vessel cannot take on 
coal again at any port of such neutral within 
three months. See 13 H. C. (1907) arts. 
19-20. 

It was formerly held that citizens of 
a neutral state may send armed vessels as 
well as munitions of war to a belligerent 
port for sale; The Santlsslma Trinidad, 7 
Wheat (U. S.) 283, 5 L. Ed. 454; though 
they would be subject, of course, to capture 
as contraband. But thi§^ doctrine has beMi 
modified as between the United States and 
Great Britain by the treaty relating to the 
Alabama claims, by which those nations 
agreed that "A neutral state is bound: 1. 
To use due diligence to prevent the fitting 
out, arming, or equipping, etc., within its 
jurisdiction, of any vessel which it has 
reasonable ground to believe is intended to 
cruise or carry on war against a power 
with which it is at peace, and also to use 
due diligence to prevent the departure from 
its jurisdiction of any vessel, etc., such ves- 
sel having been specially adapted, in whole 
or in part, within such jurisdiction, to war- 
like use." 2. "Not to permit or suffer either 
belligerent to make use of its ports or wa- 
ters as the base of naval operations against 
the other, or for the purpose of the renewal 
or augmentation of military supplies or 
arms, or the recruitment of men." 

A belligerent may capture certain articles 
as contraband of war when carried in neu- 



NEUTRALITY 



2335 



NEUTRALITY 



tral ships and having a hostile destination. 
See 13 H. C. (1907) arts. 5, 8. This Includes 
munitions of war. Other articles' are of 
doubtful use, anoipitis usus, and may be 
contraband or not according to circumstan- 
ces. There Is no settled definition of contra- 
band, nor any practice in regard to its exact 
limits. Provisions, money, or coal destined 
for the use of a belligerent army or fleet 
have been included Within the term. Coal 
is declared contraband in the proclamation 
of President McKinley, April 26, 1898, and 
by the British government on the breaking 
out of the Hispano-American war. Where 
things are of doubtful use, that is, occasion- 
al contraband, they are not usually confiscat- 
ed, but are bought by the captor at a fair 
price. This is called Pre-emption (g. v.), 
and usually applies to cargoes of provisions. 
See Contraband; 1 Kent 138. 
■ The question whether a belligerent may 
take the goods of its enemy, not contra- 
band, which -are being carried in a neutral 
ship, has been much discussed, and also 
whether innocent goods of a neutral can be 
transported in a belligerent's vessel with- 
out being confiscated when the vessel is 
captured. Formerly it was held that a 
belligerent might take enemy's goods from 
neutral custody, on the high seas. But the 
Declaration of Paris changed the rule of the 
nations, except in the case of the United 
States, Spain, and Venezuela, and a neutral 
flag now covers enemy's goods with the ex- 
ception of contraband of war. This is a 
general rule of international law, although 
some . treaties made by the United States 
have laid down a different rule ; Snow, Int. 
Law 164; it was applied by the United States 
during the war of the Rebellion; 1 Kent 
128 ; and adopted by it in the Hispano-Amer- 
ican war of 1898. 

By the Declaration of Paris (g. v.) the 
following principles were adopted: The 
neutral flag covers enemy's goods, except 
contraband of war. Neutral goods, except 
contraband of war, are not liable to cap- 
ture under an enemy's flag. 

Neutral goods on an armed belligerent 
cruiser are not subject to capture, though 
there was resistance to capture by the ves- 
sel, provided the neutral owner did not aid 
in the armament or the resistance, not- 
withstanding he had chartered the whole 
vessel and was on board at the capture; 
The Nereide, 9 Cra. (U. S.) 388, 3 L. Ed. 
769; The Atalanta, 3 Wheat. (U. S.) 409, 
4 L. Ed. 422. British practice is, however, 
to the contrary ; 1 Dods. 443. If the neutral 
vessel is in the direct employ of the enemy, 
both ships and goods are liable to capture; 
The City of Mexico, 24 Fed. 33 ; and so are 
neutral goods on a neutral vessel, if the 
latter be under the enemy's protection; The 
Schooner Nancy, 27 Ct. CI. 99. 

It is lawful for a neutral ship to carry 
contraband goods, but the right is always 



exercised subject to capture. Ordinarily 
the neutral ship is not subject to confisca- 
tion and will be released in the prize court, 
unless she belongs to the owner of the con- 
traband, or her owner is privy to the car- 
riage of the contraband goods, or uses false 
papers; Risley, Law of War 232; 1 Kent 
143. 

When two states are at war, it has be- 
come the practice of modern times for other 
states to issue a proclamation of neutrality 
to protect their commercial interests and 
territory. 

The subjects of a neutral power residing 
in a belligerent territory are not entitled to 
any special protection for their property or 
to exemption from military contributions 
to which they may be liable In common 
with the inhabitants of the place in which 
they reside or in which their property may 
be situated; 2 Halleck, Int. L., Baker's ed. 
144. 

By Convention of the Great Powers, 1887 
and 1888, the Suez Canal is neutralized, and 
is to remain open in war or peace, to ves- 
sels of commerce and war of all nations. 
See id. 149. In 1815, the Rhine was neu- 
tralized, as between the States of the Rhine, 
to a certain extent. In 1829, entrance into 
the Black Sea was admitted to belong to 
Russia and to powers at amity with Russia. 
By the treaty of Paris the Black Sea was 
neutralized, but this was largely abrogated 
in 1871. By the Qayton-Bulwer treaty, 
1850, Great Britain and the United States 
agreed that any canal built between the 
Atlantic and Pacific oceans should be for- 
ever neutral. The principle is again assert- 
ed in the Hay-Pauncefote treaty, 1901, enter- 
ed into in contemplation of the canal about 
to be constructed by the United States. 

The neutrality acts of the United States, 
which regulate the conduct of its citizens 
and of aliens while within its jurisdiction, 
constitute Title LXVII. of the Revised Stat- 
utes. Their origin and scope are as follows : 
President Washington, in his annual mes- 
sage to Congress, December 3, 1793, said : 
"The original arming and equipping of ves- 
sels in the ports of the United States by any 
of the belligerent parties for military serv- 
ices, offensive or defensive, is deemed un- 
lawful." The act of 1794, which has been 
generally recognized as the first instance of 
municipal legislation in support of the ob- 
ligations of neutrality, and a remarkable 
advance in the development of international 
law, was passed in accordance with this 
recommendation. The acts of 1817 and 1818 
were successively passed and carried for- 
ward into R. S. Title LXVII., which forbids 
citizens from accepting a commission from 
a foreign prince against a foreign prince 
with whom we are at peace; enlisting, or 
hiring or retaining- another to enlist, in the 
army or navy of such foreign prince ; fitting 
out or arming a vessel in the service of a 



NEUTBALITX 



2336 



NEUTRALITY 



foreign prince to commit hostilities against 
a foreign prince, etc. (the vessel to be fpr- 
feited — one half to the informer) ; increas- 
ing the force of any vessel of war of such 
foreign prince by adding any equipment sole- 
ly applicable to war; preparing any military 
expedition in the United States to be carried 
on thence against any foreign prince with 
whom we are at peace. 

Sec. 5288 provides that the president may 
employ the land and naval forces of the 
United States and militia In compelling any 
foreign vessel to depart the United States 
in all cases In wliich by the laws of nations 
or the treaties of . the United States she 
ought not to remain therein. Sec. 5289 pro- 
vides that the owners or consignees of every 
armed vessel sailing out of our ports be- 
longing wholly or in part to citizens there- 
of shall before clearing give bond in double 
the value of the vessel and cargo, condition- 
ed that she shall not commit any hostilities 
against any foreign prince, etc., with whom 
we are at peace. Sec. 5290 provides that the 
United States shall detain any vessel mani- 
festly built for warlike purposes and about 
to depart the United States, the cargo of 
which consists principally of munitions of 
war, when the number of men on board or 
other circumstances render it probable that 
it is intended to commit hostilities against 
any such foreign prince, etc., until the de- 
cision of the president is had thereon or the 
owner gives bond and securities as required 
in cases under § 5289. Sec. 5291 provides 
that this title shall not extend to subjects of 
any foreign prince, etc., transiently within 
the United States, who enlist on a vessel of 
war or privateer which at the time of its 
arrival here was equipped as such, or who 
employ other citizens of the same foreign 
prince, etc., to enlist on board such vessel 
of war, etc., if the United States shall then 
be at peace with such foreign prince, etc. 
Offences under these sections are made high 
misdemeanors. These sections are now part 
of the Grim. Code, ch. 2. 

The act does not prohibit armed vessels 
belonging to citizens from sailing out of 
our ports, but only requires their owners to 
give security; U. S. v. Quincy, 6 Pet. (U. S.) 
445, 8 L. Ed. 458. 

The word "people," as used in § 5283, 
covers any insurgent or insurrectionary body 
conducting hostilities, although its belliger- 
ency has not been recognized; The Three 
Friends, 166 U. S. 1, 17 Sup. Ct 495, 41 L. 
Ed. 897. 

Where a vessel is chartered by a foreign 
government to carry a cargo of arms to that 
government, she is not liable to seizure ; 
The Carondelet, 37 Fed. 799. It is not the 
intent of § 5286 to interfere with the com- 
mercial activities of citizens of the United 
States, but to prevent complications between 
this government and foreign powers, and 
fitting out military expeditions against 



friendly nations; U. S. v. Murphy, 84 Fed. 
609, per Bradford, J. 

The offence covered by the act consists 
of an act done in the United States, with '■ 
the intent to commit an offence against the 
act; the intent is a necessary ingredient; 
The Oonserva, 38 Fed. 431 ; and It must be 
formed and exist within the United States; 
The City of Mexico, 24 Fed. 33. The of- 
fence is complete wheh the expedition is or- 
ganized; U. S. V. Ybanez, 53 Fed. 536; and 
although It is formed and detached in sepa- 
rate parts; U. S. v. The Mary N. Hogan, 18 
Fed. 529. 

No particular number of men is necessary 
to constitute a military expedition under the 
act; its character may be determined by 
the designation of the officers, the organiza- 
tion of the men in regiments or companies, 
and the purchase of military stores ; U. S. v. 
Ybanez, 53 Fed. 536. Where insurgents car- 
rying on war against a foreign country sent 
a vessel to procure arms in the United 
States, the purchase of such arms and plac- 
ing them on board the vessel was held not 
within § 5286, though they were intended to 
be used by the insurgents in carrying on war 
against a foreign country, if they were not 
designed to constitute any part of the fur- 
nishings of the vessel herself ; U. S. v. Trum- 
bull, 48 Fed. 99. Placing munitions of war 
on a vessel, with intent to carry them to in- 
surgents in a foreign country, but without 
intent that they shall constitute any part of 
the furnishings of the vessel, is not within 
the act; The Itata, 49 Fed. 646. One who 
provides the means for transporting a mili- 
tary expedition on any part of its journey, 
v^th knowledge of its ultimate destination 
and unlawful character, commits an offence 
under § 5286 ; Hart v. U. S., 84 Fed. 799, 28 
0. O. A. 612. Sec. 5283 Is not applicable to 
such a case ; 13 Op. Att. Gen. 177. 

A proceeding under § 5283 is a simple 
suit in admiralty, where the decree is that 
the libel be dismissed, or the vessel con- 
demned; and no decree of restitution is 
necessary; The Conserva, 38 Fed. 431. 

The above sections of R. S. were re-enacted 
In the Criminal Code, March 4, 1909, in ef- 
fect January 1, 1910. 

The British Foreign Enlistment Act of 
1819 forbade British subjects to enlist or to 
induce others to enlist, or to leave or to in- 
duce others to leave the king's dominions 
in order to enlist; and forbade ship-owners 
to take aboard their ships persons illegally 
enlisted. It is a substantial copy of the 
American act of 1818; The Three Friends, 
166 U. S. 60, 17 Sup. Ct. 495, 41 L. Ed. 897. 
In 1870 a new British act was passed, with a 
view to preventing the evasions of the law 
which gave rise to the complaints of the 
United States that Confederate cruisers had 
been fitted out in the ports of Great Brit- 
ain. 

At the Second Hague Peace Conference, 
1907, two conventions dealing with neutral- 



NEUTRALITY 



2337 



NBVADk 



ity were adopted, one respecting the rights 
and duties of neutral powers and persons In 
war on land, and the other respecting the 
rights and duties of neutral powers lit mari- 
time war. The former asserts the principle 
that the territory of neutral powers is in- 
violable, and prohibits belligerents from 
moving troops or convoys across the terri- 
tory of a neutral power. It also forbids the 
erection of wireless telegraph stations up- 
on neutral territory and reaffirms the 
principle in R. S. § 5282 (see Cr. Code), 
forbidding recruiting upon neutral territory 
in the interest of a belligerent. It relieves 
neutral powers of responsibility for the fact 
that persons cross the frontier singly to en- 
ter the service of one of the belligerents, and 
of the duty of preventing the export from 
their territories of arms and munitions of 
war. Further provisions regulate the use of 
neutral telegraph and telephone systems. 

The Convention Respecting the Rights and 
Duties of Neutral Powers in Maritime War, 
besides codifying existing custom, enacts the 
following rules ; 

When belligerent ships have been captured 
in neutral waters, the neutral power must 
employ the means in its power' to release 
the ship if if be still within its jurisdiction ; 
if the ship has been removed, the captor gov- 
ernment must, on demand of the neutral 
power, release the vessel and its crew. In 
adhering to the convention the United States 
insisted that it was the duty of neutrals to 
make the said demand. 

Art. 8 reaffirms the first rule of the Treaty 
of Washington (1871^ making it the duty of 
the neutral government to prevent the fitting 
out or arming, or the departure from its 
ports, of any vessel which it has reason to 
believe Is intended to cruise or engage in 
hostile operations against one of the belliger- 
ents. 

Art. 12 restricts to a period of twenty-four 
hours the asylum which may be given to 
belligerent war vessels in neutral ports. 

Art. 16 regulates the departure of war ves- 
sels of the opposing belligerents from neutral 
ports. 

Arts. 17-20 regulate the repairs which 
may he carried out, and the amount of pro- 
visions and fuel which may be taken on, in 
neutral ports. 

Arts. 21-24 regulate the duties of neutral 
powers with regard to prizes brought by a 
belligerent into their ports. 
See Fen wick's Neutrality Laws of the U. S. 
See Appeoach ; Asylum ; Belugerency ; 
Blockade; Capture; Commeecia Belli; 
Confiscation; Cokteaband; Declaration op 
Paris ; Free Ships ; Insurgency ; Inter- 
national Law ; Intervention; Neutral 
Property; Pre-emption; Prize; Prize Court; 
Ransom Bills; Recapture; Rule oe War 
op 1756; Search; Ships of Was; Visit; 
War. 

Bouv.— 147 



NEVADA. One of the United States of 
America. 

It -was admitted into tlie Union, Oct. 31, 1864. Its 
boundaries were de^n^d by an enabling act, ap- 
proved March 21, 1864, as amended byr the act of 
May 5, 1866. 

The constitution was amended in 1912, by provid- 
ing that women shall be eligible to certain public 
offices and it also provides for the recall of public 
officers. 

NEVER INDEBTED. A plea to an action 
of indebitatus assumpsit, by which the de- 
fendant asserts that he is not indebted to 
the plaintiff. 6C. &amp;P.'545; 1 Q. B. 77. The 
plea of never indebted has, in England, been 
substituted for nil debeP, in certain actions 
specified in schedule B (36) of the Common 
Law Procedure Act of 1852; and the effect 
of the Plea never indebted is to deny those 
facts from which the liability of the defend- 
ant is alleged. In actions on negotiable bills 
or notes, never indebted is inadmissible; 
Reg. Gen. Hil. T. 1833, §§ 6, 7; 3 Chitty, 
Stat. 560. By the judicature act, 1875, Ord. 
xix. r. 20, a defendant is no longer allowed 
to deny generally the facts alleged by the 
plaintiff; Whart. Lex. A defendant can- 
not, under the plea of "never indebted," 
contend that, though a contract was made 
in fact, it was void in point of law, for the 
facts from which its invalidity is inferred 
must form the subject of a special plea; 
Moz. &amp; W. '. \ 

NEW. This term in its. ordinary accepta- 
tion, when applied to the same subject or 
object, is the opposite of old. .Pollard v. Kib- 
be, 14 Pet. (U. S.) 364, 10 L. Ed. 490. 

NEW AND USEFUL INVENTION. A 

phrase used in the act of congress relating 
to patents for inventions. See Patent. 

NEW ASSIGNMENT. A re-statement of 
the cause of action by the plaintiff, with 
more particularity and certainty, but con- 
sistently with the general statement In the 
declaration. Steph; PI. 241; Troup v. 
Smith's Ex'rs, 20 Johns. (N. Y.) 43. 

Its purpose is to avoid the effect of an 
evasive plea which apparently answers the 
declaration, though it does not really apply 
to the matter which the plaintiff had in 
view ; 1 Wms. Saund. 299 6. Thus, if a de- 
fendant has committed two assaults on the 
plaintiff, one of which is justifiable and the 
other not, as the declaration may not dis- 
tinguish one from the other, the defendant 
may justify, and the plaintiff not being able 
either to traverse, demur, or confess and 
avoid, must make a new assignment. 

There may be several new assignments 
in the course of the same action; 1 Chitty, 
PI. 614. A plaintiff may reply to a part of 
the plea and also make a new assignment. 
A new assignment is said to be in the na- 
ture of a new declaratioji; 1 Saund. 299 c; 
but is more properly considered as a repe- 
tition of the declaration; 1 Chit. PI. 602; 
differing only in this, that it distinguishes 



NEW ASSIGNMENT 



2338 



NEW HAMPSHIRK 



the true ground of complaint, as being dif- 
ferent from that which Is covered by the 
plea. Being in the nature of a new or re- 
peated declaration, it is, consequently, to 
be framed with as much certainty or speci- 
fication of circumstances as the declaration 
itself. In some cases, indeed, it should be 
even more particular; Gould, PI. 339 n. ; 
Bac. Abr. Trespass (I 4, 2) ; 1 Chit. PI. 610. 
See 3 Bla. Com. 311; Archb. Civ. PI. 286. 
In England, under the Judicature Act, 1875, 
Ord. xix. r. 14, no new assignment is neces- 
sary or is to be used ; but everything which 
has heretofore been alleged by way of new 
assignment is to be introduced by way of 
amendment of the statement of claim; 
Whart. Diet. 

NEW CODE. A collection of imperial con- 
stitutions in twelve books, promulgated in 
534, so called in reference to a code promul- 
gated by Justinian in 529. 1 Steph. Com. 38. 

NEW FOR OLD. A term used in ma- 
rine insurance in cases of adjustment of a 
loss when it has been but partial. In mak- 
ing such adjustment, the rule is to apply 
the old materials towards the payment of 
the new, by deducting the value of them 
from the gross amount of the expenses for 
repairs, and to allow the deduction of one- 
third new for old upon the balance. See 
Byrnes v. Ins. Co., 1 Cow. (N. T.) 265; 
Brooks V. Ins. Co., 7 Pick. (Mass.) 259. The 
deduction is usually one-third, and is made 
from the cost of labor and material, and in 
practice also from the incidental expenses 
of repairs, as towage, etc. ; but see, as to 
this last, Potter v. Ins. Co., 3 Sumn. 45, Fed. 
Oas. No. 11,335 ; The Star of Hope v. Annan, 
9 Wall. (U. S.) 203, 19 L. Ed. 688. The 
deduction is without regard to the age of the 
vessel ; Dunham v. Ins. Co., 11 Johns. (N. 
Y.) 315, 6 Am. Dec. 374. A writer criticises 
the rule of thirds, and suggests that the in- 
crease of iron mills will change the rule of 
law; Gourlie, Gen. Av. In Liverpool, no 
deduction is made on iron vessels for the 
first eighteen months. 

NEW FOREST. The royal forest in 
Hampshire, created by William the Con- 
queror. See Forest Law. 

NEW HAMPSHIRE. The name of one of 
the original thirteen United States of Amer- 
ica. 

It was subject to Massachusetts from 1641 to 1680. 
It was governed as a province, under royal commis- 
sions, by a governor and council appointed by the 
king, and a house of assembly elected by the people, 
until the revolution. 

In January, 1776, a temporary constitution was 
adopted, which continued till 1784. The constitution 
adopted in 1784 was amended by a convention ot 
delegates held at Concord, approved by the people 
in their town-meetings, and established by the con- 
vention in February, 1792. This constitution was 
amended in 1350, by abolishing the property quali- 
fications for certain offices, and amended again in 
1877, changing it in eleven particulars, the principal 
of which were the abolition of the religious test, 
and adoption ot biennial election^, increasing the 



number of senators, and changing the election from 
March to November. It was amended In 1912, by 
disqualifying voters convicted of certain crimes. 

NEW INDUSTRY. See Labob. 

NEW INN. An inn of chancery. See 

Inns of Cotibt. 

NEW JERSEY, The name of one of the 
original thirteen states of the United States 
of America. 

The territory of which the state is composed was 
included within the patent granted by Charles II. 
to his brother James, duke of York, bearing date 
on the 12th of March, •1663-4. This grant comprised 
all the lands lying between the western side ot 
Connecticut river and the east side of Delaware 
bay, and conferred powers of government over the 
granted territory. At this time the province was 
in the possession and under the government' of Hol- 
land. Before the close of the year the inhabitants 
of the province submitted to the government of Eng- 
land, on the 23d and 24th of June, 1664. The duke 
of York, by deeds of lease and release, conveyed 
to John Lord Berkeley and Sir George Carteret, 
their heirs and assigns forever, "all that tract of 
land adjacent to New England and lying and being 
to the westward of Long Island and Mantaitas Is- 
land, and bounded on the east part by the main 
sea, and part by Hudson river, and hath upon the 
west Delaware bay or river, and extendeth south- 
ward to the main ocean as far as Cape May at the 
mouth of Delaware bay, and to the northward as 
far as the northernmost branch of the said bay or 
river of Delaware, which is in 41 degrees and 40 
minutes of latitude, and crosseth over thence in a 
straight line to Hudson's river in forty-one degrees 
of latitude ; which said tract of land is hereafter to 
be called Nova Caasarla, or New Jersey." 

This grant first defined the boundaries and gave 
the name ot the province. It conferred upon the 
grantees, with the territory, powers of government 
in as full and ample manner as they were conferred 
by the crown upon the duke of York. Lord Berkeley 
and Sir George Carteret, being by virtue of this 
conveyance the sole proprietors of New Jersey, on 
the 10th of February, 1664-5, signed a constitution 
which they published under the title of "The con- 
cessions and agreement of the lords proprietors ot 
the province of Nova Csesaria, or New Jersey, to and 
with all and every of the adventurers, and all such 
as shall settle or plant there." This document, 
under the title of "The Concessions," was regarded 
as the first constitution of New Jersey, and con- 
tinued in force until the division ot the province in 
1676. The instrument was considered as irrevocable, 
and therefore ot higher authority than the acts of 
assembly, which were subject to alteration and re- 
peal. War having been declared by England against 
Holland in 1673, the Dutch were again in possession 
ot the country, and the inhabitants submitted to 
their authority. 

By the treaty of peace between England and Hol- 
land on the 9th of February, 1674, the country was 
restored tb the possession ot the English. On the 
conclusion ot peace, in order to remove all grounds 
of objection to his title on account of the recapture 
of the country by the Dutch, the duke of York ob- 
tained from the crown a new patent, similar to the 
first, and dated on the 29th of June, 1674. On the 
20th of July in the same year, the duke of York 
made a second grant ot a portion of the province to 
Sir George Carteret individually. The partition 
which thib patent was intended to secure, in addi- 
tion to the confirmation ot Carteret's grant, was ac- 
complished by deeds ot partition executed July 1,. 
1676, between Carteret and the trustees of Byllinge 
In 1702, the proprietors of the two provinces, called, 
respectively East New Jersey and West New Jer- 
sey, surrendered their powers of government to- 
Queen Anne, still retaining their title to the land. 
The two divisions constituted thenceforth but one 
colony. The colony was governed by a governor 



NEW JERSEY 



2339 



NEW TRIAL 



and council appointed by the crown, and an as- 
sembly of the representatives of the people chosen 
by the freeholders. This form of government con- 
tinued till the American revolution. 

The first constitution of the state of New Jersey 
was adapted by the provisional congress on the 
second day of July, 1776. This body was composed 
of representatives from all the counties of the state, 
who were elected on the fourth Monday of May, and 
convened at Burlington on the tenth day of June, 
1776. It was finally adopted on the second day of 
July, but was never submitted to a popular vote. 
This constitution continued in force until the first 
day of September, 1844, when it was superseded by 
the existing constitution. The new constitution 
was adopted May 14, 1844, by a convention composed 
of delegates elected by the people in pursuance ,of 
an act passed by the legislature. The constitution 
thus framed, having been submitted to and adopted 
by the people at an election held on the thirteenth 
4ay of August, took effect and went into operation, 
pursuant to one of its provisions, on the twenty- 
second of September, 1844. This constitution was 
amended at a special election held September 7, 
1875. 

NEW MATTER. In Pleading. Matter not 
previously alleged. Statements of fact not 
previously alleged by either party to the 
pleadings. Where special pleading prevails, 
such matter must be pleaded in avoidance, 
and it must, in general, be followed by a ver- 
ification; Gould, PI. c. 3, § 195; Steph. PI. 
251 ; Com. Dig. Pleader (B 32) ; 1 Wms. 
Saund. 103. See Pleja. 

In equity, new matter, discovered by ei- 
ther plaintiff or defendant, may be introduc- 
ed by cross or supplemental bill before a de- 
cree has been pronounced, but not by amend- 
ment after an answer ha^ been filed; Staf- 
ford V. Howlett, 1 Paige Ch. (N. T.) 200; 
Hammond v. Place, Harr. Ch. (Mich.) 438. 

NEW MEXICO. One of the states of the 
United States. 

By act of congress, approved September 9, 1850, 
the territory of New Mexico was constituted and 
described. A proviso was annexed that the United 
States might divide the territory into two or more, 
and that when admitted as a state the said territory, 
or any portion of the same, should be received into 
the Union with or without slavery, as their consti- 
tution might prescribe at the time of admission. 

Colorado was partly formed from New Mexico in 
1861, and in 1863 the entire territory of Arizona, 
which reduced New Mexico to its present bound- 
aries. By the organic act, the powers of the ter- 
ritory were lodged in three branches, — the legis- 
lative, executive, and judicial. The operation of 
this act was suspended until the Texan boundary 
was agreed upon, when it went into force by procla- 
xaation of the president, December 13, 1850. 

The enabling act for its admission was passed by 
congress June 20, 1910. The joint resolution for its 
admission was passed August 21, 1911, to talce effect 
upon proclamation by the president that certain 
conditions had been complied with. The proclama- 
tion was made January 6, 1912. 

NEW PROMISE. A contract made after 
the original promise has, for some cause, 
been rendered invalid, by which the promisor 
agrees to fulfil such original promise. With- 
in the meaning of the statute of frauds the 
renewal of a promise to pay Is a new prom- 
ise; McCrillis v. Millard, 17 R. I. 724, 24 
Atl. 576. See Limitations. 

NEW TRIAL. A re-examlnatlon of an is- 
sue in fact before a court and a jury, which 



has been tried at least once before the same 
court ; Hill. N. Tr. 1. A rehearing of the le- 
gal rights of the parties, upon disputed facts, 
before another jury, granted by the court on 
motion of the party dissatisfied with the re- 
sult of the previous trial, upon a proper case 
being presented for the purpose; 4 Chitty, 
Gen. Pr. 30; Grab. &amp; W. N. Tr. 32. It is 
either upon the same, or different, or addi- 
tional evidence, before a new jury, and prob- 
ably, but not necessarily, before a different 
judge. It is a re-examination of an issue 
of fact in the same court after a trial and 
decision by a jury, court or feferee; Har- 
per V. Hildreth, 99 Cal. 265, 33 Pac. 1103. 

The origin of the practice of granting 
new trials is of extremely ancient date, and, 
consequently, involved in some obscurity. 
Blackstone gives the most connected and 
satisfactory account of it of any writer; 3 
Com. 387. 

Courts have, in general, a discretionary 
power to grant or refuse new trials, accord- 
ing to the exigency of each particular case, 
upon principles of substantial justice; 1 
Burr. 390. That the trial judge is not satis- 
fied with a verdict is not binding on the 
court in banc, but deserves serious consider- 
ation ; L. J. 55 Q. B. 403. This discretion is 
generally not reviewable on error; Hardin v. 
Inferior Court, 10 Ga. 93; Kerr v. Clampitt, 
95 U. S. 188, 24 L. Ed. 493 ; Rex v. Gough, 2 
Doug. 791 ; and such action by the court may 
be talcen if a motion is not made within the 
time limited by rule or statute, since "if the 
court conceive a doubt that justice is not 
done, it is never too late to grant a new 
trial, but not on application of the party" ; 
Lord Mansfield in 5 Term 437; and the 
same opinion was expressed by Kenyon, C. 
J., and Buller, J., in 5 Term 436. It should 
be exercised with great caution where a new 
trial is aslied only because the verdict is 
against the weight of the evidence ; Ruffner's 
Heirs v. Hill, 31 W. Va. 428, 7 S. E. 13. 

Where one party moves for a new trial 
and the opposing party consents thereto, the 
court is not compelled to grant the same; 
Smedley v. R. Co., 45 lU. App. 426. An or- 
der granting a new trial operates to set 
aside the judgment; Wheeler v. Kassabaum, 
76 Cal. 90, 18 Pac. 119. 

"Ordinarily a court has no power to grant 
a new trial after the adjournment of the 
term if no application has been made previ- 
ous to the adjournment and no continance 
granted"; Belknap v. tJ. S., 150 U. S. 588, 
14 Sup. Ct. 183, 37 L. Ed. 1191; Sanderson 
T. TJ. S., 210 U. S. 168, 175, 28 Sup. Ot. 661, 
52 L. Ed. 1007, where it was held that the 
power to grant a new trial after the term 
may be given by statute and that the provi- 
sion of U. S. R. S. § 1088, permitting a mo- 
tion for a new trial on behalf of the govern- 
ment within two years after final disposition 
of a claim by the court of claims was within 
the power of congress, inasmuch as, where 



IfWW TKIAIi 



2340 



NEW TRIAL 



the government consents to be sued; it may 
attach such conditions as to it seem proper. 
And in Pennsylvania by statute (1903) the 
supreme court may authorize the trial court 
to: grant a new trial, nunc pro tuno, after the 
term at which a ^jrisoner was convicted and 
sentenced for murder in the first degree, 
when it is made to appear that there is 
ground for substantial doubt of guilt. But a 
new trial may be granted after judgment so 
long as the case is still under the control of 
the trial court and if the motion was made 
reasonably within the rule of the state stat- 
ute or common law ; B-iiig™^n v. Wester 
Mfg. Co.; 170 U. S. 675, 18 Sup. Ot. 786, 42 
L. Ed. 1192. 

The usual grounds for a new trial may 
be enumerated as follows: 

The not giving the defendant sufflcient no- 
tice of the time and place of trial, unless 
waived by an appearance and making a de- 
fence, will be a ground for setting aside the 
verdict; 3 Price 72; Lisher v. Parmelee, 1 
Wend; (N. Y.) 22. But the defendant's ig- 
norance must not have been owing to his 
own negligence, and the insufliciency of the 
notice must have been reasonably calculated 
to mislead him ; 3 B. &amp; P. 1 ; Kitchen v. 
Crawford, 13 Tex. 516; Seymour v. Miller, 
32 Conn. 402. 

Pleadings. FaUure of the complaint to 
state a cause of action is available on mo- 
tion for a new trial; Consol. Ganal Co. v. 
Peters, 5 Ariz. 80, 46 Pac. 74 ; so-of one which 
shows the alleged cause of action to be bar- 
red; Lambert v. Mfg. Co., 42 W- Va. 813, 
26 S. B; 431: 

Misconduct of parties, counsel, or witness- 
es. The use of crutches by plaintiff in going 
to and from the witness stand, when just 
before and after the trial he walked readily 
without them, is ground for a new trial; 
.Corley v. K. Co., 12 App. Div. 409, 42 N. X. 
Supp. 941; but plaintiff's hysteria while on 
the witness stand is not; Chicago &amp; B. R. 
Co. V. Meech, 163 111. 305, 45 N. E. 290; nor 
is a controversy, between court and counsel, 
during .the trial, not prejudicial to the de- 
feated party; Herdler v. Range Co., 136 Mo. 
3, 37 S. Wi 115 ; nor improper remarks made 
by counsel in, his argument; Gulf, 0. &amp; S. F. 
Ky. Co. V. Curb, 66 Fed. 519; 13 C. C. A. 587, 
2? U. S. App. 663. 

A new trial will be granted where jurors 
were treated by a party to the cause; Phil- 
lipsburgh Bk. v. Fnlmer, 31 N. J. L. 52, 86 
Am. Dec, 193; Harrington v. Probate Judge, 
153 Mich. 660, 117 JST. W. 62 ; Scott v. Tubbs, 
43 Colo. 221, 95 Pac. 540, 19 L. R. A. (N, S.) 
733, and note ; or by counsel ; People v. Mon- 
tague, 71 Mich' 447, 39 N. W. 585 ; Rainy v. 
State, 100 Ga. 82, 27 S. B. 709; Steenburgh 
V. McRorie, 60 Misc.; 510, 113 N. Y. Supp. 
1;118; Stewart V. Woolman, 26 Oht. Rep. tl4; 
or by persons interested; McGUl Bros. v. 
Ry., 75 S. C. 177, 55 S. E. 216; 6 U. C. Q. B. 
O. S. 352; though in, some cases, where the 



, treating was satisfactorily explained and 
considered innocent of evil effect, the verdict 
was not disturbed, though generally disap- 
proval of the practice was expressed; Pat- 
ton V. Mfg. Co., 11 R. X. 188 ; Doe v. Roe, 3 
Pennewlll (Del.) 128, 50 Atl. 217. Giving the 
jury a dinner in a public place after the 
verdict is rendered is not ground for a new 
trial; Beach Front Hotel Co. v. Sooy, 197 
Fed. 881, 118 C. C. A. 579. 

Mistakes or omissions of officers in sum- 
moning and drawing jurors, when the irreg- 
ularity deprives the party complaining of a 
substantial right, will entitle him to a new 
trial; Straughan v. State, 16 Ark. 37; Com. v. 
Roby, 12 Pick. (Mass.) 496. Likewise, 
where the officer summoning the jury is 
nearly related to one of the parties; Mun- 
shower v. Patton, 10 S. &amp; R. (Pa.) 334, 13 
Am. Dec. 678; Rector v. Hudson, 20 Tex. 234; 
or is interested in the event ; Woods v. 
Rowan, 5 Johns. (N. Y.) 133; unless the ob- 
jection to the officer was waived by the 
party; Walker v. Green, 3 Greenl. (Me.) 215; 
Orrok v. Ins. Co., 21 Pick. (Mass.) 457, 32 
Am. Dec. 271 ; or the authority of the officer 
be so circumscribed as to put it out of his 
power to select an improper jury ; Wakeman 
V. Sprague, 7 Cow. (N. Y.) 720. A verdict 
will be set aside for the following causes: 
The unauthorized interference of a party, 
or his attorney, or the court, in selecting or 
returning jurors, unless the interference can 
be satisfactorily explained; Park v. Harri- 
son, 8 Humphr. (Tenn.) 412; that a juror 
not regularly summoned and returned per- 
sonated another; Stripling v. State, 77 Ga. 
108, 3 S. B. 277; 7 Dowl. &amp; R. 684; but not 
if the juror personated another through mis- 
take, was qualified in other respects, and no 
injustice has been done; 12 East 229; To- 
ledo Consol. St. R. Co. v. R. Co., 12 Ohio 
Cir. Ct. R. 367. That a juror sat on the 
trial after being challenged and stood aside, 
unless the party complaining knew of it, 
and did not object; Jordan v. Meredith, 3 
Yeates (Pa.) 318, 2 Am. Dec. 373; that a ju- 
ror was discharged without any sufficient 
reason, after being sworn ; Stewart v. State^ 
1 Ohio St. 66; but not if the juror was dis- 
charged ijy mistake and with the knowledge 
and acquiescence of the party ; Com. v. Stow- 
ell, 9 Mete. (Mass.) 572; State v. Lytle, 27 
N. 0. 58 ; that the jury were not sworn, or 
that the oath was not administered in the 
foi-m prescribed by law; Irwin v. Jones, 1 
How. (Miss.) 497. 

The disqualiftcation of jurors, if it has not 
been waived, will be ground for a new trial ; 
but a principal cause of challenge to a juror, 
not discovered during the trial, will not re- 
quire a new trial in a criminal case, unless 
injustice resulted to the prisoner from the 
fact that such juror served; State v. Harri- 
son, 36 W. Va. 729, 15 S. B. 982, 18 L. R. A. 
224 ; that a juror was also a member of the 
grand jury toding the bill will not sustain 



NEW TRIAL 



2341 



NEW TRIAD 



a motion In arrest of judgment, where no ob- 
jection was made to the juror on the trial; 
State V. Cooler, 30 S. C. 105, 8 S. E. 692, 

3 L. R. A. 181; People v. Lewis, 4 Utah, 42, 
5 Pac. 543. The want of a necessary prop- 
erty qualification is ground for a new trial ; 

4 Term 473; Brlggs v. Georgia, 15 Vt. 61; 
irregularity in selection, which results in 
injury to the defeated party ; State v. Breen, 
59 Mo. 417; but after a plea of not guilty 
and conviction, defendant may not object to 
the venire or to jurors summoned under it; 
State V. Cole, 9 Humphr. (Tenn.) 626; or to 
a juror whose name was not in the, box, on 
the list, or on the books of the tax receiver; 
Osgood V. State, 63 Ga. 791; but not if it ap- 
pears that injustice was not done; Beck v. 
Thompson, 31 W. Va. 459, 7 S. B. 447, 13 Am. 
St. Rep. 870 ; and there was a fair trial, and 
the verdict was fully warranted by the evi- 
dence; Fisher v. Yoder, 53 Fed. 565. Rela- 
tionship to one of the parties ; Hardy v. 
Sprowle, 32 Me. 310 ; or to one of the coun- 
sel ; Brown v. Reed, 81 Me. 158, 16 Atl. 504 ; 
Swift V. Mott, 92 Ga. 448, 17 S. E. 631; or 
business relations with the counsel; Fealy 
V. Bull, 11 App. Div. 468, 42 N. Y. Supp. 569 ; 
is ground ; but knowledge of such relation 
must not have been obtained before trial, 
else the disqualification is waived; Jewell v. 
Jewell, 84 Me. 304, 24 Atl. 858, 18 L. R. A. 
473; unless the relationship be so remote as 
to render it highly improbable that it could 
have had any influence; Churchill v., Church- 
ill, 12 Vt. 661. So is interest in the event; 
Wood V. Stoddard, 2 Johns. (N. Y.) 194; 
Page V. R. R., 21 N. H. 488 ; concealment of 
his interest by juror; Pearcy v. ins. Co., Ill 
Ind. 59, 12 N. E. ^8, 60 Am. Rep. 673 ; bias or 
prejudice; U. S. v. Fries, 3 Dall. (U. S.) 515, 
1 L. Ed. 701; where a juror was deputy 
prosecuting attorney; Block v. State, 100 
Ind. 357 ; conscientious scruples against find- 
ing a verdict of guilty; Pierce v. State, 13 
N. H. 536; Martin v. State, 16 Ohio 364; 
People V. Damon, 13 Wend. (N. Y.) 351; an 
opinion held by juror which would have ex- 
cluded him if discovered before he was 
sworn; State v. Harrison, 36 W. Va. 729, 
15 S. E. 982, 18 L. R. A. 224 ; and mental or 
bodily disease unfitting jurors for the intel- 
ligent performance of their duties; Hogs- 
head V. State, 6 Humphr. (Tenn.) 59; Bax- 
ter V. People, 3 Gilman (111.) 368; alienage; 
Richards v. Moore, 60 Vt. 449, 15 Atl. 119; 
(but riot criminality of juror ; State v. Pow- 
ers, 10 Or. 145, 45 Am. Rep. 138; Hill v. Cor- 
coran, 15 Colo. 270, 25 Pac. 171; but see 
Greenup v. Stoker, 3 Gilman [111.] 202; Hol- 
lingsworth v. Duane, 4 Dall. [U. S.] 353, 
1 L. Ed. 864) . The want of purely statutory 
qualifications, such as citizenship, age, prop- 
erty, etc., which are not essential to an in- 
telligent and impartial discharge of duty by 
a juror, are not treated vrith the same strict- 
ness as bias and like causes; Brewer v. Ja- 
cobs, 22 Fed. 234. 



When inddrect measures have 'been resort- 
ed to, to prejudipe the jury, or tricks prac- 
tised or disingenuous attempts made to sup-, 
press or stifle evidence or thwart the pro- 
ceedings, or to obtain an unconscionable ad- 
vantage, they will be defeated by granting 
a new trial. For example : where papers 
material on the point In issue, not previously 
submitted, are surreptitiously handed to the 
jury; Cas. temp. Hardw. 116; Sheaff v. 
Gray, 2 Yeates (Pa.) 273; or where the par- 
ty, or some one in his behalf, directly ap- 
proaches the jury on the subject of the trial ; 
Ritchie v. Holbrooke, 7 S. &amp; R. (Pa.) 458; 
Knight V. Freeport, 13 Mass. 218; or where 
one not a member of the jury slept in the 
same room with them, and had a conversa- 
tion with one or two of them, in which he 
made statements reflecting on the character 
of the party against whom the verdict was 
rendered; Welch v. Taverner, 78 la. 207, 42 
N. W. 650. But if the other party is aware 
of such attempts, and neglects to correct 
them when in his power, he will be deemed 
to have waived all objection; 11 Mod. 118. 
If the interference with the jury comes from 
a stranger, be without fault in the jury, and 
without the knowledge of the parties, and no 
injury has thereby ensued,, the verdict will 
not be disturbed ; Stewart v. Small, 5 Mo. 
525; Luster v. StatOj 11 Humphr. (Tenn.) 
169; Rowe v. State, id. 491. But see Boles 
V. State, 13 Smedes &amp; M. (Miss.) 398. Where 
the jury, after retiring to deliberate, exam- 
ined witnesses in the case, a new trial was 
granted; Cro. Eliz. 189; Thompson v. Mal- 
let, 2 Bay (S. C.) 94; Smith v. Graves, 1 
Brev. (S. C.) 16; so, also, when one of their 
number communicates to his fellows private 
information possessed by him, which influ- 
ences the finding; Booby v. State, 4 Yerg. 
(Tenn.) Ill; Wood R. Bk. v. Dodge, 36 Neb. 
708, 55 N. W. 234 ; or the judge addresses a 
note to them, or privately visits them, after 
they have retired t6 deliberate; Sargent v. 
Roberts, 1 Pick. (Mass.) ii37, 11 Am. Dec. 
185 ; or a juror takes a private view ; Har- 
rington V. R. Co., 157 Mass. 579, 32 N. E. 
955; Consolidated Ice-Mach. Co. v. Ice Co., 
57 Fed. 898; Woodbury v. Anoka, 52 Minn. 
329, 54 N. W. 187. 

Misconduct of jurors will sometimes avoid 
the verdict, and by the weight of authority, 
if prejudicial, is ground for reversal; Com. 
V. Landis, 12 Phila. (Pa.) 576. 

Instances of misconduct are: Jurors bet- 
ting as to the result; Booby v. State, 4 
Yerg. (Tenn.) Ill ; sleeping during the trial ; 
Baxter v. People, 3 Gilman (111.) 368; see 
Com. V. Jongrass, 181 Pa. 172, 37 Atl. 207; 
unauthorized separation ; Wesley v. State, 11 
Humphr. (Tenn.) 502 ; but see State v. Har- 
per, 101 N. C. 761, 7 S. B. 730, 9 Am. St. RejJ. 
46; Territory v. Hart, 7 Mont. 489, 17 Pac. 
718; Sanitary Dist. of Chicago v. CuUerton, 
147 m. 385, 35 N. B. 723; taking refresh, 



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ment at the charge of the prevailing party ; 
Harrison v. Rowan, 4 Wash. C. O. 32, Fed. 
Cas. No. 6,142 ; Vose v. Muller, 23 Neb. 171, 
36 N. W. 583; see supra; see Wichita &amp; W. 
R. Co. V. Fechheimer, 49 Kan. 643, 31 Pac. 
127 ; drinking spirituous liquor ; Gregg's Les- 
see V. McDaniel, 4 Harr. (Del.) 367; Rose v. 
Smith, 4 Cow. (N. X.) 17, 15 Am. Dec. 331; 
People V. Douglass, 4 Cow. (N. Y.) 26, 15 
Am. Dec. 332; People v. Lee Chuck, 78 Cal. 
317, 20 Pac. 719; if any mental incapacity 
results therefrom ; Territory v. Burgess, 8 
Mont. 57, 19 Pac. 558, 1 L. R. A. 808 ; but see 
Territory v. Burgess, 8 Mont. 57, 19 Pac. 
558, 1 L. R. A. 808; State v. Bailey, 100 N. 
C. 528, 6 S. E. 372; talking to strangers on 
the subject of the trial ; Bennett v. Howard, 
3 Day (Conn.) 223; Riley v. State, 9 Humphr. 
(Tenn.) 646; but not general conversation; 
State V. Harrison, 36 W. Va. 729, 15 S. E. 
982, 18 L. R. A. 224 ; determining the verdict 
by a resort to chance ; Harvey v. Rickett, 15 
Johns. (N. Y.) 87; Hendrickson v. Kingsbury, 
21 la. 379; St. Martin v. Desnoyer, 1 Minn. 
156 (Gil. 131), 61 Anil. Dec. 494; Boynton v. 
Trumbull, 45 N. H. 408 ; by returning as the 
verdict the quotient obtained by dividing by 
twelve the total of the sums named by the 
jurors; E. Tennessee &amp;'W. N. C. R. Co. v. 
Winters, 85 Tenn. 240, 1 S. W. 790 ; Parshall 
V. R. Co., 35 Fed. 649; Houk v. Allen, 126 
Ind. 568, 25 N. E. 897, 11 L. R. A. 706. But 
not every irregularity which would subject 
jurors to censure will overturn. the verdict, 
unless there be some reason to suspect that 
it may have had an Influence on the final re- 
sult. See Testard v. State, 26 Tex. App. 260, 
9 S. W. 888 ; State v. Gould, 40 Kan. 258, 19 
Pa!c. 739. In general, if it does not appear 
that the misconduct was occasioned by the 
prevailing party or any one in his behalf, 
and does not indicate improper bias, and the 
court cannot see that it either had or might 
have had an effect unfavorable to the party 
moving for a new trial, the verdict will not 
be disturbed. For gross misconduct of the 
jury a new trial may be granted on grounds 
of public policy; Hilly. New T. 198. Where 
the jury after returning an informal verdict 
were discharged, and within thirty seconds 
recalled and the verdict corrected, the sepa- 
ration will not vitiate the verdict; Boyett v. 
State, 26 Tex. App. 689, 9 S. W. 275. When 
the jury were kept out eighty-four hours it 
was held that their agreement was coerced 
and a new trial ordered; People v. Sheldon, 
156 N. Y. 268, 50 N. B. 840, 41 L. R. A. 644, 
66 Am. St. Rep. 564. i 

Reading a newspaper account of the facts 
Is misconduct ; Moore v. State, 36 Tex. Cr. 
R. 88, 35 S. W. 668; "but if favorable to the 
prisoner or not such as to cause prejudice 
against him, it is immaterial; U. S. v. Reid, 
12 How. (U. S.) 361, 13 L. Ed. 1023. If the 
article was such as to aid in reaching a ver- 
dict, a new trial will be granted; Mattox v. 



U. S., 146 V. S. 140, 13 Sup. Ct. 50, 36 L. Ed. 
917; People v. Stokes, 103 Cal. 193, 37 Pac. 
207, 42 Am. St. Rep. 102. Where jurors had 
read a newspaper article with a strong bias 
against the prisoner, but records so clearly 
established guilt that whether they had read 
the article or not they could have returned 
no other verdict, a new trial was denied ; 
State V. Williams, 96 Minn. 351, 105 N. W. 
265. The reading by jurors of a scurrilous 
newspaper article is ground for a motion 
for a new trial, but where the jurors had 
been interrogated, and counsel had expressed 
himself satisfied and declined to press a mo- 
tion to withdraw a juror, he was not after- 
wards entitled to a new trial ; U. S. y. Mar- 
rin, 159 Fed. 767, 772, where many cases of 
motions for new trials on that ground are 
cited. 

Error of the judge will be ground for a 
new trial ; such as, admitting illegal evidence 
which has been objected to, — unless the ille- 
gal evidence was wholly immaterial, or it is 
certain that no injustice has been done; 
Thompson v. Thompson, 77 Ga. 692, 3 S. E. 
261 ; and where the illegal testimony was ad- 
mitted in gross violation of the well-settled 
principles -which govern proof, it has been 
deemed per se ground for a new trial, not- 
withstanding the jury were directed to dis- 
regard it; Penfield v. Carpender, 13 Johns. 
(N. Y.) 350; but see Hamblett v. Hamblett, 
6 N. H. 333; improperly rejecting evidence 
tending in any degree to aid the jury in de- 
termining a material fact ; (joleman v. AUen, 
3 J. J. Marsh. (Ky.) 229 ; the admission of 
incompetent evidence, although of slight im- 
portance, if the party has suffered or might 
have suffered prejudice by its admission; 
Glover v. Flowers, 101 N. C. 134, 7 S. E. 579; 
but the objection that the jury were not al- 
lowed to take to their room letters introduc- 
ed in evidence cannot first be raised on a 
motion for a new .trial; German S. Bk. v. 
Bank, 101 la. 530, 70 N. W. 769, 63 Am. St. 
Rep. 399 ; nor the admission of improper evi- 
dence not objected to at the trial; Herdlei 
V. Range Co., 136 Mo. 3, 37 S. W. 115; with- 
drawing testimony once legally before the 
jury, — unless the excluded testimony could 
not be used on a second trial ; Brown v. Wil- 
liams, 4 Humphr. (Tenn.) 22; denying to a 
party the right to be heard through counsel ; 
Belmore v. Caldwell, 2 Bibb (Ky.) 76; erro- 
neously refusing to grant a non suit; Foot 
V. Sabin, 19 Johns. (N. Y.) 154, 10 Am. Dec. 
208; improperly restricting the examination 
or cross-examination of witnesses, or allow- 
ing too great latitude in that respect, under 
circumstances which constitute a clear case 
or abuse; Allen v. Bodine, 6 Barb. (N. Y.) 
383; refusing to permit a witness to refer 
to documents to refresh his memory, where, 
by the denial, the complaining party has sus- 
tained injury; Key v. Lynn, 4 Litt (Ky.) 
338; improperly refusing an adjournment, 



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whereby injustice has been done; Bishop v. 
State, 9 Ga. • 121 ; improperly denying the 
right to open and close at the trial; Royce 
V. Gazan, 76 Ga. 79; refusing to give such 
instructions to the jury as properly arise in 
the case, where It is manifest that the jury 
erred through want of instruction; Maston 
V. Fanning, 9 Mo. 305; giving to the jury 
binding instructions, when there are circum- 
stances in the case which ought to have been 
submitted to them, — unless the verdict is in 
strict accordance with the weight of evi- 
dence; Fitzgerald v. Alexander, 19 Wend. 
(N. Y.) 402; giving an erroneous exposition 
of the law on a point material to the issue, — 
imless it is certain that no injustice has been 
done, or the amount in dispute is very trifling, 
so that the injury is scarcely appreciable; 
Stoddard v. R. Co., 5 Sandf. (N. Y.) 180; 
misleading' the jury by a charge which is 
not explicit, or which is absurd and impos- 
sible, or contradictory, or argumentative and 
evasive; Benham v. Gary, 11 Wend. (N. Y.) 
83; erroneous instruction as to the proof 
that is requisite ; Handly v. Harrison, 3 Bibb 
(Ky.) 481; State v. Somerville, 21 Me. 20; 
misapprehension of the judge as to a ma- 
terial fact, and a direction to the jury ac- 
cordingly, whereby they are misled; Murden 
V. Ins. Co., 1 Mill (S. C.) 200; see Mis- 
DiBECTioN; instructing the jury as to the 
law upon facts which are purely hypo- 
-thetical, — but not if the charge was correct 
in point of law, and the result does not 
show that the jury were misleu by the gener- 
ality of the charge; Bethune v. McCrary, 8 
Ga. 114; submitting as a contested point 
what has been admitted; Toby v. Reed, 9 
Conn. 216; erroneously leaving to the jury 
the determination of a question that should 
have been decided by the court, whereby 
they have mistaken the law; charging as 
to the consequences of the verdict; Baylies 
V. Davis, 1 Pick. (Mass.) 206; 2 Graham &amp; 
W. New Tr. 595. Neither the rejection nor 
admission of Immaterial evidence is cause 
for a new trial; Thompson v. Thompson, 77 
Ga. 692, 3 S. E. 261. 

Misconduct of the Court. Where the 
judge took it upon himself to develop the 
plaintiff's case by asking questions, which 
would have been objectionable if asked by 
counsel, the appellate court reversed the 
judgment and granted a new trial, remark- 
ing that they would have done so, even if no 
exception had been taken, owing to the ex- 
treme use of judicial power; Bolte v. Ry. 
Co., 38 App. Div. 234, 56 N. Y. Supp. 1038; 
and such abuse of judicial discretion is rec- 
ognized as a ground of relief in Wheeler v. 
Wallace, 53 Mich. 355, 19 N. W. 33 ; Dunn v. 
People, 172 111. 582, 50 N. E. 137, where the 
court objected to the examination of witness- 
es in criminal trials as prejudicial to a fair 
result. And see 13 H. L. R. 144. 
Where the trial judge smiled when the 



name of a witness was called out as Ananias 
Godvrtn, and an exception was taken and the 
witness was not examined, it was held not 
reversible error and the appellate court re- 
marked that it was impossible to place Itself 
In a position to consider intelligently the 
harmful effect, if any, of this slight lapse 
from severe judicial decorum had Ananias 
been before the jury as a witness. It is rea- 
sonably certain, however, that had he been 
presented to the jury, the biblical forbear 
of the name would speedily have been 
brought to the attention of any juror so ig- 
norant as to be unaware of it, and that the 
smile was natural, even if not justified or ex- 
cusable; Bellamy v. State, 56 Fla. 43, 47 
South. 868. 

Surprise, as a ground for setting aside 
the verdict, is cautiously allowed. When 
it is occasioned by the act of the adverse 
party, or. by circumstances out of the 
knowledge ^nd beyond the control of the 
party injured by it, this has sometimes 
been held to constitute grounds for relief; 
but not when he might have been fully 
informed by the exercise of ordinary dili- 
gence; Matthews v. Allaire, 11 N. J. L. 242; 
Clifford V. R. Co., 12 Colo. 125, 20 Pac. 333; 
although even when the complainant is not 
entirely free from fault, the court, in cases 
where great wrong would otherwise be done, 
will, for the sake of promoting justice, grant 
a new trial. Among the cases of surprise 
may be enumerated the following: the un- 
expectedly being summoned and detained as 
a witness or juror in another court, or sud- 
den and serious illness, which prevents the 
party from attending at , the trial; Stewart 
V. Durrett, 3 T. B. Monr. (Ky.) 113; Sher- 
rard v. Olden, 6 N. J. L. 344 ; that the cause 
was brought on prematurely, in the absence 
of the party; Donallen v. Lennox, 6 Dana 
(ky.) 89; erroneous ruling of the court as 
to the right to begin, which has worked 
manifest injustice; Davis v. Mason, 4 Pick. 
(Mass.) 156; but see Comstock v. Ecclesias- 
tical Soc, 8 Conn. 254, 20 Am. Dec. 100; 
Scott V. Hull, 8 Conn. 296; perturbation of 
counsel, arising from sudden and dangerous 
sickness occurring in his family and coming 
to his knowledge during the trial; Cutler v. 
Rice, 14 Pick. (Mass.) 494; where some un- 
foreseen accident has prevented the attend- 
ance of a material witness; 6 Mod. 22; 
Glover v. Miller, Harp. (S. C.) 267; that tes- 
timony beyond the reach of the party in- 
jured, and completely under the control of 
the opposite party, was not produced at 
the trial; Jackson v. Warford, 7 Wend. (N. 
Y.) 62; that competent testimony was un- 
expectedly ruled out on the trial; Boyce v. 
Yoder, 2 J. J. Marsh. (Ky.) 515; where a 
party's own witnesses, through forgetfulness, 
mistake, contumacy, or perjury, testify dif- 
ferently than anticipated, or where evidence 
is unexpectedly sprung upon a party by his 
opponent; Wilson v. Brandon, 8 Ga. 136; 



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2344 



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the withdrawal of a material witness before 
testifying, attended with suspicions of col- 
lusion; Tilden v. Gardiner, 25 Wend. (N. 
T.) 663; that a material witness was sud- 
denly deprived of the power of testifying by 
a paralytic stroke, or other affection, or that 
the testimony of the witness was incohe- 
rent on account of his being disconcerted at 
the trial ; Ainsworth v. Sessions, 1 Root 
(Conn.) 175; where it is discovered after 
the trial that a material witness who tes- 
tified is interested in the event, or where it 
is probable that the verdict was obtained by 
false testimony, which the party injured 
could not until after the trial contradict or 
expose; 2 C. B. 342; Morrell v. Kimball, 1 
Greenl. (Me.) 822. But a new trial cannot 
be obtained on the ground of surprise caused 
by evidence which was clearly within the is- 
sues presented by the pleadings ; Gulf, G. &amp; 
S. F. R. Co. V. Shearer, 1 Tex. Civ. App. 343, 
21 S. W. 133. There Is no such ground 
for granting a new trial as mistake or in- 
advertence, as distinguished froln accident 
or surprise ; Fincher v. Malcolmson, 96 Cal. 
38, 30 Pac. 835. Accident or surprise which 
ordinary prudence could not have guarded 
against, does not include. ignorance, mistake, 
nor misapprehension of an attorney, not oc- 
casioned by the adverse party, nor misman- 
agement of the defence by the attorney, 
through design, ignorance, or neglect ; Hold- 
erman v. Jones, 52 Kan. 743, 34 Pac. 352; 
Tittman v. Thornton, 107 Mo. 500, 17 S. W. 
979, 16 U R. A. 410. 

New trials on accoimt of after-discovered 
evidence are granted but rarely, and with 
great caution. The court, in order to set 
aside the verdict on this ground, must be 
satisfied that the evidence has come to the 
applicant's knowledge since the trial ; Wig- 
gin v.- Coflin, 3 Sto. 1, Fed. Gas. No. 17,624 ; 
State V. Carr, 21 N. H. 166, 53 Am. Dec. 179; 
that it is not owing to the want of diligence 
that it did not come sooner ; Floyd v. Jayne, 

6 Johns. Ch. (N. Y.) 479; Wright v. Exp. 
Co.,^0 Fed. 85; Etowah G. M. Co. v. Exter, 
91 Ga. 171, 16 S. E. 991; Harralson v. Bar- 
rett, 99 Cal. 607, 34 Pac. 342; that it is so 
material that it will probably produce a 
different result; Chicago v. Edson, 43 111. 
4.j&gt;p. 417; see Morgan v. Bell, 41 Kan. 345, 
21 Pac. 255; and that it is not cumulative; 
Aiken v. Bemis, 3 Woodb. &amp; M. 348, Fed. 
Ca's. No. 109; as mere cumulative evidence 
iS; insufiicient to warrant a new trial ; Plumb 
v.. Campbell, 129 111. 101, 18 N. E. 790; Gil- 
more V, Brost, 39 Minn. 190, 39 N. W. 139 ; 
Sabine &amp; E. T. R. Co. v. Wood, 69 Tex. 679, 

7 S. W, 372; Bond v. Com., 83 Va. 581, 3 
S. E. 149 ; but the rule does not apply where 
it is cumulative evidence to prove an alibi; 
State V. Stowe, 3 Wash. 206, 28 Pac. 337, 14 
Ij. R. a. 609. Nor must the sole object of 
the newly-discovered evidence be to impeach 
witnesses examined, on the former trial; 



Robinson v. Veal, 79 Ga. 633, 7 S. E. 159; 
Brown v. Grove, 116 Ind. 84, 18 N. B. 387, 9 
Am. St. Rep. 823; State v. Mitchell, 102 
N. C. 347, 9 S. E. 702. The moving party 
must state what the evidence is, and what 
diligence he has used in the preparation of 
his case ; and his application must be ac- 
companied by .affidavits of the newly-discov- 
ered witness, unless some cause be shown 
why they cannot be produced; Sheppard v. 
Sheppard, 10 N. J. L. 25.0 ; Gilbert v. Wood- 
bury, 22 Me. 246. Evidence which could 
have been procured before the trial by the 
exercise of reasonable dilig,ence is not suffi- 
cient; Beachley v. McCormick, 41 Kan. 485, 
21 Pac. 646 ; Gray v. Barton, 62 Mich. 186, 
28 N. W. 813; Fears v. Albea, 69 Tex. 437, 
6 S. W. 286, 5 Am. St. Rep. 78; Booth v. 
McJilton, 82 Va. 827, 1 S. E. 137. 

When a continuance on account of ab' 
sent testimony is refused, and it subsequent- 
ly appears that such evidence is necessary 
and material to the defendant, he should be 
awarded a new trial; Fowler v. State, 25 
Tex. App. 27, 7 S. W. 340; McCline v. State-, 
25 Tex. App. 247, 7 S. W. 667. 

Perjury. Where perjured testimony had 
been procured by bribery on the part of the 
succe^ssful party, it was held not a ground 
for setting aside a verdict, though there, was 
a reasonable certainty that the result of a 
new trial would be different; Pico v. Cohn, 
91 Cal. 129, 25 Pac. 970, 27 Pac. 537, 13 L. 
R. A. 336, 25 Am. St. Bep. 159; nor where 
the perjured testimony was obtained by con- 
spiracy of the opposing party and his wit- 
nesses ; Ross V. Wood, 70 N. Y. 9 ; the perr 
jury of a witness will not be a ground for a 
new trial even if he promise that he would 
tell the truth; Loucheine v. Strouse, 49 
Wis. 623, 6 N. W. 360; but a new trial was 
granted where one party alleged that a 
witness had committed perjury and the al- 
legation was sustained by the affidavit of 
the witness; Seward v. Cease, 50 111. 238. 
In any event, a conviction of perjury is nec- 
essary before a new trial will be granted be- 
cause of it; Holtz v. Schmidt, 44 N. T. 
Super. Ct. 327; unless the witness has died 
since the trial so that his conviction is im- 
possible; Dyche v. Patton, 56 N. C. 332; 
where there has been a conviction, a new 
trial was granted; Great Falls Mfg. Co. v. 
Mathes, 5 N. H. 574. But the conviction for 
perjury would not be ground for granting a 
new trial where it was procured mainly on 
the testimony of the party moving for the 
new trial; Home v. Home, 75 N. C. 101. 
Pico V. Cohn, supra, was decided mainly on 
the authority of tJ. S. v. Throckmorton, 98 
U. S. 65, 25 L. Ed. 95, in which keeping the 
unsuccessful party away from the court by a 
false promise of a compromise, or falsely 
keeping him In ignorance of the suit, or a 
fraudulent pretence of the attorney who rep- 
resented the party and corruptly sold out 
his client's interests, were given as illustra- 



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2345 



NEW trial; 



tions of the rule ttiat In order to afford a 
basis for setting aside a Judgment on the 
ground of fraud, it must be extrinsic or col- 
lateral to the question examined and deteir- 
mined. 

Excessi/ve damages may be good cause 
for granting a new trial; first, where the 
measure of damages is governed by fixed 
rules arid principles, as in actions , on con- 
tracts, or for torts to property, the value of 
which may be ascertained by evidence; sec- 
ond, in suits for personal injuries, where, 
although tfiere is no fixed criterion for as- 
sessing the damages, yet it is clear that the 
jury acted from passion, partiality, or cor- 
ruption; Lang V. Hopljins, 10 Ga. 37." 

•A new trial should be granted for an 
error of law, where the general merits 
of the case, as one for a recovery at all, 
are doubtful, and where the damages are 
apparently excessive; Savannah, F. &amp; W. R. 
Co. v. Harrigan, 80 Ga. 6.02, 7 S. B. 280. In 
actions for personal torts, a new trial will 
not, in general, be granted on account of 
the smallness of the damages, unless the 
verdict Is the result of contrivance by the 
defendant, or surprise on the plaintiff, or of 
partiality or misconduct of the jury, or un- 
less the finding is entirely disproportioned 
to the injury. See 49 L. J. Q. B. 233, where 
a verdict of £7,000 in favor of a physician 
for damages, caused by defendant's negli- 
gence, was set aside on the ground of the 
damages being insufiicient. 

A state statute forbidding new trials on 
account of inadequate damages, if binding 
on the federal courts, would be In violation 
of the constitutional right of a trial by 
jury; Hughey v. Sullivan, 80 Fed. 72. 
Where the verdict is for an amount exceed- 
ing the damages laid in the writ, it will be 
set aside unless the plaintiff will release the 
excess; Mclntire v. Clark, 7 Wend. (N. X.) 
330. See Jtjey; Damages. 

The court will not grant a new trial on 
motion of plaintifC on the ground that the 
amount of the verdict was inadequate,' where 
in its opinion the verdict should have been 
for the defendant; Blazosseck v. Sherman 
Co., 141 Fed. 1022. 

It is within the discretion of the trial 
court, after a verdict awarding excessive 
damages, to make an order denying a mo- 
tion for a new trial on the condition that 
the plaintiff will remit a certain part of the 
verdict; Davis v. Southern Pac. Co., 98 Cal. 
13, 32 Pac. 646; Arkansas Valley L. &amp; C. 
Co. V. Mann, 130 U. S. 69, 9 Sup. Ct. 458, 32 
L. Ed. 854. It is error to set aside a verdict 
, as excessive unless the amount Is such as to 
show misconduct and Impropriety on the part 
of the jury ; Scott V. Pub. Ass'n, 74 Hun 
284, 26 N. Y. Supp. 690. Where the question 
of damages is peculiarly for the jury, if the 
court grant a new trial, it should be granted 
absolutely and not en condition of a refusal 
to file a remittitur; Albany t. Sikes, 94 Ga. 



30, 20 S. B. 257, 26 L. R. A. 653, 47 Am. St 
Rep. 132. ' 

When the verdict is clearly against the 
law, it will be set aside, notwithstanding the 
jury had power to decide both the law and 
the fact, or the issue was one exclusively of 
fact and there have been concurrent verdicts 
by two successive juries; State v. Sims, Dudl. 
(Ga.) 213; Chambers v. Collier, 4 Ga. 193; 
see Cheatham v. Lord, 79 Ga. 770, 4 S. E. 
162 ; if, however, substantial justice has been 
done, a new trial will not be granted though 
the law arising on the evidence would have 
justified a different result; 1 Burr. 54; 4 
Term 468. 

The jury are bound to follow the instruc- 
tions of the court, even though they be held 
erroneous by the appellate court; they are 
the law of the trial ; Barton v. ShuU, 62 Neb; 
570, 87 N. W. 322; Crane v. R. Co., 74 la. 
330, 37 N. W. 397, 7 Am. St. Rep. 479; Flem- 
ming V. Ins. Co., 4 Whart. (Pa.) 59, 33 Am. 
Dec. 33 ; Emerson v. Santa Clara County, 40 
Cal. 543; Murray v. Heinze, 17 Mont. 353, 
42 Pac. 1057, 43 Pac. 714; Swartout v. WU- 
lingham, 6 Misc. 179, 26 N. Y. Supp. 769; 
Lucas V. Clafflin, 76 Va. 269; 17 C. B. 280; 
Lynch v. Iron Works, 132 Ky. 241, 116 S. 
W. 693, 21 L. B. A. (N. S.) 852, and note; 
even if the judge is subsequently convinced 
that his view of the law was wrong; Paul 
V. Casselberry, 12 Phila. (Pa.) 313; Dent v; 
Bryce, 16 S. C. 1 ; although if there is an in- 
struction which is correct and with which 
the verdict accords, it will be sustained; 
Cobb V. R. Co., 38 la. 601; contra; Wellborn 
V. Weaver, 17 Ga. 267, 63 Am. Dec. 235 ; 
Peck v. Land, 2 Ga. 1, 46 Am. Dec. 368; 
Cochrane v. Wlnbum's Ex'rs, 13 Tex. 143; 
Van Vacter v. Brewster, 1 Smedes &amp; M. 
I Miss.) 400. 

A new trial has been refused where verdict 
was justified by the evidence, though the 
jury disregarded an erroneous instruction ; 
Galllgan v^ R. Co., 27 R. I. 363, 62 Atl. 376; 
St. Louis, I. M. &amp; S. R. Co. v. Dooley, 77 
Ark. 561, 92 S. W. 789. 

Courts are at all times reluctant to grant 
a new trial on the ground that the verdict 
is against the evidence; and where the jury 
have passed upon a mere question of fact, 
they will only do so when the verdict is palp- 
ably against the evidence; injustice must 
have been done by the verdict, and, there 
must be a probability that justice will be 
done on a retrial; Derwort y. Loomer, 21 
Conn. 'S45; Hinton v. McNeil, 5 Ohio 509, 
24 Am. Dec. 315. A statute forbidding courts 
to' set aside a third verdict In the same ac- 
tion, does not apply to a case where there ig 
no evidence, and thus construed, is constitu- 
tional;' Railway Co. v. Mahoney, 89; Tenn. 
311, 15 S. W. 652. See Louisville; &amp; N. R. 
Co. V. Woodson, 134 U. S. 614, 10 Sup. Ct. 
628, 33 L. Ed. 1032. Where the verdict is 
founded on circumstantial evidence, the court 



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2346 



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will rarely, if ever, interfere with it; Young 
V. Silkwood, 11 111. 36. On the other hand, 
when the issue approximates to a purely le- 
gal question, courts are somewhat more lib- 
eral in granting new trials; Felder v. Bon- 
nett, 2 McMuU. (S. O.) 44, 37 Am. Dec. 545. 
The verdict will be set aside where the wit- 
nesses upon whose testimony it was obtained 
have since the trial been convicted of per- 
jury-; 3 Dougl. 24; so where the testimony 
on which the verdict is founded derives its 
credit from circumstances, and those circum- 
stances are afterwards clearly falsified by 
affidavit; 1 B. &amp; P. 427; 3 Grab. &amp; W. N. Tr. 
1203. 

The verdict may be void for ohsourity or 
uncertainty; Diehl v. Evans, 1 S. &amp; R. (Pa.) 
367; and where special findings are contra- 
dictory on essential questions, a new trial 
should be granted; State v. River Corp., Ill 
N. C. 661, 16 S. E. 331. It will be set aside 
where it is not responsive to the issue, or 
does not comprehend all of the issues, un- 
less the finding of one or more of the issues 
will be decisive of the cause; Toulmin v. 
Lesesne, 2 Ala. 359 ; or where it is contrary 
to the instructions, whether the latter are 
right or wrong; 'Crane v. R. Co., 74 la. 330, 
37 N. W. 397, 7 Am. St. Rep. 479; or where 
the verdict shows that it includes items not 
shown by the evidence to be due ; McDole v. 
Simmons, 45 111. App. 328. So, where the 
findings on the issues are contradictory, thus 
rendering the general verdict inconsistent 
and unintelligible ; Porter v. R. Co., 97 N. C. 
66, 2 S. E. 581, 2 Am. St. Rep. 272. That it 
was not recorded in open court, or was re- 
ceived in the absence of the plaintiff, or was 
altered after it was recorded and the jury 
dismissed, will be ground for a new trial; 
People V. Mayor's Court, 1 Wend. (N. T.) 
36; Walters v. Junkins, 16 S. &amp; R. (Pa.) 
414, 16 Am. Dec. 585. If rendered on Sun- 
day, it will, in general, be void ; but there 
are many instances in which verdicts have 
been sustained though rendered on that 
day; Hoghtaling v. Osborn, 15 Johns. (N. 
Y.) 119 ; Huidekoper v. XSotton, 3 Watts (Pa.) 
56;- State v. Ehgle, 13 Ohio 490. 

In the United States courts no exception 
lies to the overruling of a motion for a new 
trial; Northern Pac. R. Co. v. Oharless, 51 
Fed. 562, 2 C. 0. A. 380, 7 U. S. App. 359; 
Luitweiler v. U. S., 85 Fed. 957, 29 C. O. A. 
504 ; or where a new trial on the ground of 
after discovered evidence is refused ; Mc- 
Leod V. New Albany, 66 Fed. 378, iS 0. 0. 
A. 525, 24 U. S. App. 601. 

The Pennsylvania act of 1891 provides 
that "the supreme court shall have power in 
all cases to aflirm, reverse, amend, or modify 
a judgment, decree, etc., and to enter such 
judgment or decree as it may deem proper, 
without returning the record to the court 
below, and may order a verdict and judg- 
ment to be set aside and a new trial had." 



In Smith v. Pub. Co., 178 Pa. 481, 36 Atl, 
296, 35 li. R. A. 819, it was said by the court 
that this was "a new power, a wide depar- 
ture from the policy of centuries in regard 
to appellate courts and clearly exceptional 
in character;" but the act was held to be 
constitutional, and the court ordered the ver- 
dict set aside. A later statute (1905) author- 
izing the appellate court to "revieW the ac- 
tion of the court below, and enter such judg- 
ment as shall be warranted by the evidence 
taken in that court," is enforced in that 
state; but it was held that it cannot be en- 
forced in the federal courts in Pennsylvania, 
being obnoxious to the prohibition of the 
seventh amendment of the federal constitu- 
tion; Slocum V. Ins. Co., 228 U. S.. 364, 33 
Sup! Ct. 523, 57 L. Ed. 879. See NoN Ob- 
stante VlaiEDICTO. 

An act of Montana authorizing its supreme 
court to grant a new trial for excessive dam- 
ages, was upheld in Kennon v. GUmer, 131 
U. S. 29, 9 Sup. Ct. 696, 33 L. Ed. 110 ; where 
it was held that the court below could order 
a new trial, or, with the plaintiff's consent, 
reduce the verdict, but could not enter judg- 
ment itself for a lesser sum than the verdict 

A new trial will be ordered where the ap- 
pellant is deprived of his bill of exceptions 
by the death of the trial judge; People v. 
Judge, 41 Mich. 726, 49 N. W. 924; Hume v. 
Bowie, 148 XJ. S. 245, 13 Sup. Ct. 582, 37 L. 
Ed. 488; {contra, Etchells v. Wainwright, 76 
Conn. 534, 57 Atl. 121) ; Taylor v. Simmons, 
116 N. C. 70, 20 S. E. 961 ; or his retirement; 
Borrowscale v. Bosworth, 98 Mass. 34; see 
Malony v. Adsit, 175 U. S. 286, 20 Sup. Ot; 
115, 44 L. Ed. 163. Other cases hold that it 
may be signed by the new judge; People v. 
McConnell, 155 111. 192, 40 N. E. 608; Water 
S. &amp; S. Co. V. Tenney, 21 Colo. 285, 40 Pac. 
442; the legislature may provide for signa- 
ture by another judge, there being no vested 
right in the practice previously followed in 
the state of giving a new trial as a inatter 
of right; Johnson v. Smith, 78 Vt. 145, 62 
Atl. 9, 2 L. R. A. (N. S.) 1000, and note. 

In the federal courts (R. S. § 953, as 
amended June 5, 1900), where, by reason of 
death, sickness, or other disability, a circuit 
judge is unable to pass on a motion for a 
new trial and sign a bill of exceptions, his 
successor, or any other judge holding the 
court, shall do so, or, if satisfied that he 
cannot, he may, in his discretion, grant a 
new trial ; Penn Mut. Life Ins. Co. v. Ashe, 
145 Fed. 593, 76 C. C. A. 283, 7 Ann. Gas. 491. 

A new trial will be granted where the 
judge has lost his notes; Ritter v. Grimm, 
114 N. C. 373, 19 S. E. 239 ; or has neglected ' 
to prepare a statement of the case on ap- 
peal ; Bryans v. State, 29 Tex. App. 247, 15 
S. W. 288 ; or where papefs had been lost by 
appellee; Com'rs -of Greenville v. S. S. Co., 
98 N. C. 163, 3 S. E. 505; or the summons 
was lost; Smith y. Trimble, 27 III. 153; or 



NEW TRIAL 



2347 



NEW TRIAL 



the charge had been destroyed by fire; Fire 
lAss'n of Philadelphia v. McNerney (Tex.) 
54 S. W. 1053; or necessary papers had been 
lost; Zweibel v. Caldwell, 72 Neb. 47, 99 N. 
W. 843, 102 N. W. 84 (contra, Devore v.. 
Territory, 2 Okl. 562, 37 Pac. i092) ;.dr where 
by the fault of the official stenographer, an 
appellant is deprived of his bill of excep- 
tions; Mathews v. Mulford, 53 Neb. 252, 73 
N. W. 661 ; James v. French, 5 Pa. Co. Ct. R. 
270 (contra, Morin v. Claflin, 100 Me. 271, 61 
Atl. 782) ; or where the stenographer's notes 
had been stolen; Nichols v. Harris, 32 La. 
Ann. 646; or lost; Richardson v. State, 15 
Wyo. 465, 89 Pac. 1027, 12 Ann. Cas. 1048. 

Loss of papers will not excuse delay in 
filing the record on appeal, unless the appel- 
lant has secured an extension of timej or ap- 
plied to the lower court to have the papers 
supplied, and has acted with diligence and 
been without fault; Bailey v. TJ. S., 3 Okl. 
Cr. 175, 104 Pac. 917, 25 L. R. A. (N. S.) 
865, and note pitlug Williams v. La Penotiere, 
K Fla. 473, 6 South. 167 ; Succession of 
Llula, 42 La. Ann. 475, 7 South. 585 ; Buck- 
man v. Whitney, 28 Cal. 555. 

When the record on a criminal appeal is 
incomplete and does not contain the evidence, 
without appellant's fault, it was held that a 
new trial will be granted ; State v. MeCarver, 
113 Mo. 602, 20 S. W. 1058. 

In Alley v. McCabe, 147 111. 410, 35 N. B. 
615, it was held that the hardship to the 
appellant could not be imposed upon the ap- 
pellee. 

Judgment was reversed and a new trial 
ordered because the Judge went out of the 
county while the jury was deliberating; 
Martin v. State, 10 Ga. App. 455, 73 S. E. 686. 

Courts of Equity have always proceeded 
with great caution In awarding new trials 
where an Issue has been sent to be tried at 
law. At the present day they are but sel- 
dom applied to for this purpose, as courts 
of law are liberal in exercising the same ju- 
risdiction, and it has been held to be un- 
conscionable and vexatious to bring into 
courts of equity a discussion which might 
have been had at law ; 1 Sch. &amp; L. 201. But, 
in general, when it would have been proper 
for a court of law to have granted a new 
trial if the application had been made while 
that court had the power, it is equally prop- 
er for a court of equity to do so if the appli- 
cation be maae on grounds arising after the 
court of law can no longer act; Colyer v. 
Langford's Adm'rs, 1 A. K. Marsh. (Ky.) 237. 
A court of equity will not grant a new trial 
at law to enable a party to impeach a wit- 
ness, or because the verdict is against evi- 
dence ; Woodworth v. Van Buskerk, 1 Johns. 
Ch. (N. Y.) 432 ; or when the new trial can 
be obtained by application to a law court; 
Wolcott V. Jackson, 52 N. J. Eq. 387, 28 Atl. 
1045. It will only interpose in cases of new- 
ly discovered evidence, surprise, fraud, or 
the like, where the party is deprived of the 



means of defence by circumstances beyond 
his control; Harrison v. Harrison, 1 Litt 
(Ky.) 140; Peagram v. King, 9 N. 0. 605. 
But it has been held that a court of equity 
■will often grant a second, and sometimes a 
third, fourth, and even fifth trial of a feign- 
ed Issue, in cases where a court of law would 
not disturb a first verdict; Patterson v. 
Ackerson, 1 Edw. Ch. (N. Y.) 96. This aris- 
es from the consideration that the responsi- 
bility of the decision rests upon the judge 
in equity ; 3 Grab. &amp; W. N. Tr. 1570. 

New trials may be granted in criminal as 
well as in civil cases, on motion of the de- 
fendant, when he is convicted even of the 
highest offences. But a person once lawful- 
ly convicted on a sufficient indictment can 
never after, against his consent, be a sec- 
ond time put in peril for the same offence, 
unless the former conviction was instituted 
by the fraudulent procurement of the de- 
fendant with a view to shield himself from 
adequate punishment; 2 Grab. &amp; W. N. Tr. 
61. Where the' accused has been acquitted, 
and his acquittal has not been procured by 
his own fraud or evil practice, the law, 
mingling justice with mercy in favorem vitce 
et Wbertatis, does not permit a new trial; 
State V. Brown, 16 Conn. ti*. In civil ac- 
tions for the recovery of penalties, and in 
some cases where the form of proceeding is 
criminal, if the object be only to establish a 
civil right, as in cases of quo warranto and 
the Uke, new trials may be granted ^ven aft- 
er acquittal. But, in such cases, wien the 
verdict Is for the defendant^ it will not, in 
general, be disturbed unless some rule of 
law be violated in the admission or rejection 
of evidence or in the charge of the court to 
the jury ; 4 Term 753 ; Paddock v. Salisbury, 
2 Cow. (N. Y.) 811. See Jtjet; Misdibbc- 
TioN; Chabge; Mistbial; Thayer, Bvid., for 
history of new trial. 

NEW WORKS. By a new work is under- 
stood every sort of edifice or other work 
which Is newly commenced on any, ground 
whatever. Where the ancient form of work 
is changed, either by an addition being 
made to it or by some part of the ancient 
work being taken away, it is styled also a 
new work. La. Civ. Code, Art. 856. 

NEW YORK. The name of one of the 
original states of the United States of Amer- 
ica. 

In Its colonial condition this state was governed 
trom the period of the revolution of 1688 by. gov- 
ernors appointed hy the crown, assisted by a coun- 
cil, which rfeceived its appointments also from the 
parental government, and by the representatives of 
the people. 1 Story, Const, b. 1, ch. 10. 

The constitution adopted in 1777 remained in force 
until January 1, 1823, when the second went into 
operation. This second constitution remained until 
January 1, 1847, when a constitution, adopted by a 
convention of the people at Albany, went into force. 
This constitution was amended in pertain particu- 
lars, and remained in force until January 1, 1895, 
when the present constitution was adopted by a 
convention at Albany and went into effect^ on Jan- 



NEW YORK 



2348 



NEXT FRIEND 



narjr 1, 1895, except article six, relating to the 
cpuyts, which became operative January 1, 1896, 

NEWLY DISCOVERED EVIDENCE. 

Proof of some new and material fact in the 
case, which has, been discovered since the 
verdict. See New Tkial. 

NEWSPAPERS. Papers for conveying 
news, printed and distributed periodically. 
, A paper issued every day of tlje week 
except one is a daily newspaper; Richard- 
son V. Tobin, 45 Cal. 30. 
. A paper devoted principally to, legal in- 
telligence is a newspaper in which notices 
.required by statute may be published; Kerr 
y. Hitt, 75 111. 5i; but see Beecher v. Steph- 
ens, 25 Minn. 147. 

Publication of notice from June 26 to 
July 26, both dates Inclusive, Is a sufficient 
■ compliance with an ordinance directing pub- 
liqation for thirty days, although the paper 
,in which the publication is made is not is- 
sued on Sundays or on the 4th of July; 
Moore v^ Walla Walla, 60 Fed. 961, 

One yrho receives and retains a newspaper 
regularly sent to him is bound to pay for 
it, though he had. ordered it discontinued; 
Austin V. Burge, 156 Mo. App. 286, 137 S. W. 
618; Fogg V. Atheneum, 44 N. H. 115, 82 
Am. Dec. 191; Ward v. Powell, 3 Harr.. 
.(Del.) 379. 

.See Libel ; Liberty o/ the Pbess ; Postal 
Service. 

NEXI. In Roman Law. Persons bound 
{nexi) ; that is, insolvents, who might be 
held in bondage by their creditors until their 
debts were discharged. Heineccius, Antiq. 
Rom. ad Inst. lib. 3, tit. 330; Calvinus; 
Maekeldey, Civ. Law § 486 a. See Nexum. 

NEXT. Nearest or nighest, not In the 
sense of propinquity alone, as, for example, 
tilree persons on three chairs, one in the 
midst, those on each side of the middle one 
are equally near, each "next" to the mid- 
dle one; but it signifies also order, or suc- 
cession, or relation as well as propinquity. 
27 L. J. Ch. 654. See 3 Q. B. 723; Couch v. 
Turnpike Co., 4 Johns. Ch. (N. Y.) 26. 

NEXT FRIEND. One who, without being 
regularly appointed guardian, acts for the 
benefit of an infant, married woman, or oth- 
ei: person not sui jnris. 

Where a person of unsound mind, not 
found so by inquisition, conveys his land 
by deed to another, the proper -mode of 
proceeding in equity to have such' deed 
g'ancelled, i annulled, and made void is not 
;by information exhibited, by the attorney- 
general on the relation of others, but by a 
bil,! in the name of the Incompetent person 
by a responsible next friend ; Penington v. 
■Thompson, 5 Del. Oh. 328, where the practice 
in such cases was elaborately discussed, both 
in argurneht and by Saulsbury, Ch., who per- 
mitted an information in the name of the at- 
torney-general to be amended into a bill .by 



next friend, and whose decision was affirm- 
ed on appeal, where the only question was 
the propriety of the amendment. 

It has been held in other states that such 
suit may be brought by next friend on behalf 
of a person not adjudged Insane and having 
no guardian appointed; Holzheiser v. B. Co., 
11 Tex. Civ. App. 677, 33 S. W. 887; Gillespie 
V. Hauenstein, 72 Miss.. 838, 17 South. 602; 
but in Ohio it was- held that such action 
must be by guardian, not next friend; Bow 
V. Bow, 53 Ohio St. 249, 41 N. E. 239; and 
in Iowa that it could not be done independ- 
ently of statute ; Tiffany v, Worthington, 96 
la. 560, 65 N. W. 817. In such cases the 
court may supersede a next friend by a 
guardian ad litem, and in its discretion stay 
proceedings instituted by the former; King 
V. Asylum, 64 Fed. 331, 12 C. C. A. 145. 

See Pkochein Ami. 

Where an infant is so young as to be in- 
capable of making a selection of a person 
to represent him, the court will permit any 
person to institute suit in his behalf, exer- 
cising, however, discretion to prevent any 
abuse of that right; Kingsbury v. Buckner, 
134 U. S. 650, 10 Sup. Ct. 638, 33 L. Ed. 1047. 

A next friend may select one of several 
tribunals in which the infant's case shall be 
tried and may elect to accept the jurisdiction 
of the federal court to which the case may 
be removed; In re Moore, 209 U. S.. 490, 28 
Sup; Ct. 585, 706, 52 L. Ed. 904, 14 Ann. Cas. 
1164. 

The weight of authority is against the 
right of the next friend to receive payment 
of and satisfy a judgment recovered on be- 
half of an infant; Wood v. Claiborne, 82 
Ark. 514, 102 S. W. 219, 11 L. B. A. (N. S.) 
913, 118 Am., St. Rep. 89 ; Galveston Oil Co. 
V. Thompson, 76 Tex. 235, 13 S. W. 60; Col- 
lins V. Gillespy, 148 Ala. 558, 41 South. 930, 
121 Am.- St. Rep. 81; Tripp v.. GifEord, 155 
Mass. 108, 29 N. E. 208, 31 Am. St. Rep. 530 
(dictum). A person of unsound mind who 
has not been adjudged insane, and for whom 
no conservator has been appointed, may 
bring a suit by next friend; Isle v. Cranby, 
199 111. 39, 64 N. E. 1065, 64 L. R. A. 518. 

In a suit on behalf of an infant, by; his 
next frierld, the infant must be a plaintiff.; 
Morgan v. Potter, 157 U. S. 195, 15 Sup. Ct. 
590, 39 L. Ed. .670. 

NEXT OF KIN. This term is used to 
signify the relations of a partjf wbio has 
died intestate. 

In general, no one comes within this 
term who is .not included in tHe provisions 
of the statutes of distribution; 3 Atk. 422, 
761; 1 Ves. Sen. 84; Slosson v. Lyn^ll, 28 
How. Pr. (N. Y.) 417. The phrase nieans 
relation ,by blood; Keteltas v. Keteltas, 72 
N. Y. 312, 28 Am, Rep. 155. It has been lield, 
on the. other hand, that next of kin in a yiii\ 
mea;ns "nearest of kin;" 10 CI. &amp; F. 215; 
Redi^ond v. Burroughs, 63 JI. C. 242. A 



NEXT OP KIN 



2349 



NEXT OP KIN 



M-ife cannot, in general, claim as next of kin 
Of her husband, nor a husband as next of 
kin of his wife; Haraden v. Larrabee, 113 
Mass. 430; Peterson v. Webb, 39 N. C. 56; 
14 Ves. 372; Townsend v. RadclifCe, 44 111. 
446 ; Appeal of Ivlns, 106 Pa. 176, 51 Am. 
Rep. 516. But see Merchants' Ins. Co. v. 
Hinman, 34 Barb. (N. Y.) 410; Steel v. 
Kurtz, 28 Ohio St. 192; French v. French, 
84 la. 655, 51 N. W. 145, 15 L. K. A. 300. 
But when there are circumstances in a will 
which induce a belief of an intention to 
include them under this term, they will be 
so considered, though in the ordinary sense 
pf the word they are not; Hovenden, Fr. 
288, 289; 1 My. &amp; K. 82; the same rule 
holds as to the interpretation of statutes ; 
Lima E. L. &amp; P. Co. y. Deubler, 7 Ohio Cir. 
.Ct. K. 185 ; French v. French, 84 la. 655, 51 
N. W. 145, 15 L. R. A. 300. 

As to next of kin in the act of congress of 
March 3, 1891, see Fbench Spoliation 
Claims. 

In the construction of wills and settle- 
ments, after a considerable conflict of opin- 
ions, the established rule of interpretation 
in England is that next of kin when found 
in ulterior limitations must be understood to 
mean nearest of kin without regard to the 
statute of distribution; 2 Jarm. Wills 108; 
Blagge V. Balch, 162 U. S. 464, 16 Sup. Ct. 
853, 40 L. Ed. 1032. This rule was fol- 
lowed in Swasey v.Jaques, 144 Mass. 135, 10 
N. E. 758, 59 Am. Rep. 65 ; Redmond v. Bur- 
roughs, 63 N. C. 242; but it was not ap- 
proved in Tillman v. Davis, 95 N. Y. 17, 47 
Am. Rep. 1; Pinkham v. Blair, 57 N. H. 226. 

Next of kin ordinarily have no standing in 
law or equity for the recovery of property 
alleged to belong to their decedent; Buch- 
anan V. Buchanan, 75 N. J. Eq. 274, 71 Atl. 
745, 22 L. B. A. (Nj S.) 454, 138 Am. St. 
Rep. 563, 20 Anp. Cas. 91, citing Ware v. 
Galveston City Co., Ill U. S. 170, 4 Sup. Ct. 
337, 28 L. Ed. 393, and a large number of 
other cases ; otherwise, if there was collu- 
sion between the personal representatives 
and the party against whom they have 
brought suit; Rowell v. Rowell, 122 Wis. 1, 
99 N. W. 473 ; Trotter v. Life Ass'n, 9 S. D. 
596, 70 N. W. 843, 62 Am. St. Rep. 887; Mc- 
Lemore v. Min. Co., 121 Ky. 53, 88 S. W. 
1062 ; Hubbard v. Urtou, 67 Fed. 419. Many 
cases find an exception to that rule where 
there are no debts against the estate and 
nothing remains but to collect the assets and 
pay them over to the next of kin ; Bridgman 
y. R. Co., 58 Vt. 198, 2 Atl. 467; Walker v. 
Abercrombie, 61 Tex. 69; Hurt y. Fisher, 96 
Tenn. 570, 35 S. W. 1085 ; Roberts v. Mesr 
singer, 134 Pa. 298, 19 Atl. 625, contra: Dav- 
enport y. Brooks, 92 Ala. 627, 9 South. 153; 
Leamon v. McCubbin, 82 111. 263; also an 
exception to the rule has been made when 
the administrator refuses to sue; Matheny 
V. Ferguson, 55 W. Va. 656, 47 S. B. 886; 
Randel v. Dyett, 38 Hun ^N. Y.) S47i but 



even in such case the rule was applied ih 
L. R. 7 Ch. Div. 210. It seems that, if the 
administrator consents, the next of kin may 
sue; Anderson v. Goodwin, 125 Ga. 663, 54 
S. E. 679. In Samuel v. Marshall, 3 Leigh 
(Va.) 567, a bill by the next of kin to set 
aside a fraudulent gift was sustained, but 
the property was decreed to the personal 
representatives. 

See Legacy; Descent and Distbibution; 
Kin ; Kindred. 

NEXUM (Lat.). In Roman Law. The 
transfer of the ownership of a thing,' or the 
transfer of a thing to a' creditor as a secu- 
rity. 

In one sense nexum Includes' mo/ndpium; in an- 
otlier sense, mancvpium an^ nexum are opposed. In 
the same way as' sale and 'mortgage or pledge are 
opposed. The formal part ol both transactions 
consisted in a trasfer per c^s et Wbram. The per- 
son who became nexus by the effect of a nexifm 
placed himself in a servile condition,' not becoming 
a slave, his ingenuitas being only in suspense, and 
was said nexum inire. The phrases nexi datio, 
nexi Uberatibj respectively express the contracting 
and the release' from : the obligation. 

The Roman law as to-, th^ payment of borrowed 
money was very strict. A curious passage of Gel- 
lius {xx. 1) gives us the ancient mode of legal' pro- 
cedure in the case of debt, aS fixed by the Twelve 
Tables. If- the debtor adipitted the debt, or bad 
been condemned in the amount of the debt by a 
judex, he had thirty days allowed him' for payment. 
At the expiration of this' time he -wag 'liable ;to the 
manus injectio, and ultimately to be assigned) :over 
to .the creditor iaMictus) by the sentence of,. -the 
praetor. The creditor was required to keep him for 
sixty days in chains, during which 'time he publicly 
exposed the debtor, on three nundintos, - and pro- 
claimed the amount of his debt. If no person re- 
leased the prisoner by paying the debt, the creditor 
might sell him as a slave or put him to death. If 
there were several creditors, the letter of the law 
allowed them to cut the debtor in pieces and talce 
their share of his body in proportion to their debt, 
Gellius says that there was no instance of a creditor 
ever having adopted this extreme mode of satisfy- 
ing his debt. But the creditor might treat the 
debtor, who was addictus, as a' slave, and compel 
him to work out his debt ; and the treatment was 
often very severe. In this passage Gellius does not 
speak of nexi, but only of addicti, which is some-; 
times alleged as evidence of the identity of nexus 
and addictu^, but it proves no such identity.s If a 
nexus is what he is here supposed to be, the laws 
of the Twelve Tables could not apply; for wh'en a 
man became nexus with respect to one creditor, he 
could not become nexy^ to another; and if he be- 
came nexus to 'several at once, in this case the cred- 
itors- must abide by their contract in taking a joint 
security. This law of the Twelve Tables only ap-; 
plied to the case of a debtor being assigned over by 
a 'indicia! sentence to several creditors, and it pro- 
vided for a settlement of their conflicting claims. 
The precise condition of a nextis has, however, been 
a subject of much discussion among scholars. See 
Spiith, Diet. Rom. &amp; Gr. Antiq. ; Manctpium. 

Nexum was apparently a contract for the repay- 
ment of a money loan, the security for which was 
the debtor's own person. Launspach, State of Fam- 
ily in Early Rome 229. 

NICHILLS or NIHILS. Debts due to the 
exchequer which the sheriff could not levy, 
and as tb which he returned nil. These 
sums were transcribed once a year by the 
clerk of the nichills, and sent to the treas- 
urer's remembrancer's office, whence process 
was issued to recover the "nichiU" debts. 



NICHILLS 



2350 



NIGHT 



Both of these offices were abolished in 1833 ; 
Manning's Exch. Pr. 321. 

NICKNAME. A short name; one nicked, 
or cut off for the sake of brevity, without 
conveying any idea of opprobrium and fre- 
quently evincing the strongest affection or 
the most entire familiarity. Busb. Bq. 74. 
See Rawnley's Diet, of Engl. Names; Name. 

NIDERLING. A vile, base person or slug- 
gard ; chicken-hearted. Spelm. Sometimes 
Nidering and Nithing. Toml. Die. 

NIECE. The daughter of a brother or 
sister. Ambl. 514 ; 1 Jac. 207. See Nephew ; 
Legacy. 

NIEFE. See Neif. 

NIENT COMPRISE (Law Fr. not in- 
cluded). An exception taken to a petition 
because the thing desired is not contained 
in that deed or proceeding whereon the 
petition is founded. Toml. Law Diet. 

NIENT CULPABLE (Law Fr. not guilty). 
The name of a plea used to deny any charge 
of a criminal nature, or In an action for a 
tort. 

NIENT D ED I RE (Law Fr. to say noth- 
ing).- Words used to signify that judgment 
be rendered against a party because he does 
not dtoy the cause of action : i. e. by de- 
fault. 

When a fair and impartial trial cannot 
be had in the county where the venue is 
laid, the practice in the English courts is, 
on an affidavit of the circumstances, to^ 
change it, in transitory actions; or, in 
local actions, they will give leave to enter 
a suggestion on the roll, with a nient dedire, 
in order to have the trial in another county. 
1 Tidd, Pr. 655. See 10 C. B. N. S. 825. 

NIENT LE FAIT (Law Fr.). In Pleading. 

The same as non est factum, a plea by which 
the defendant asserts that the deed declared 
upon is not his deed. 

NIENT SEIST. In Old Pleading. Not 

seised. The general plea in a writ of an- 
nuity. Crabb, Eng. L. 424. 

NIGHT. That space of time during which 
the sun is below the horizon of the earth, 
except that short space which precedes its 
rising and follows its setting, during which 
by its light the countenance of a man may 
be discerned. 

It is night when there is daylight, ore- 
pusculum or diluculum, enough left or beguh 
to discern a man's face withal. 1 Hale, PI. 
Cr. 550; 4 Bla. Com. 224; Bac. Abr. Bur- 
glary (D) ; 2 Russ. Cr. 32. See State v. 
Morris, 47 Conn. 182; Kroer v. People, 78 
111. 295. 

The common-law rule has been modified 
by statute in some of the states, and by the 
Stat. 9 Geo. IV. c. 69, the night, for pur- 
poses of poaching, was held to begin one 
hour after sunset, and end one ho,ur before 



sunrise. By the stat. 24 &amp; 25 Vict. c. 96, 
the night, during which a burglary may be 
committed, is deemed to commence at 9 
p. m., and end at 6 a. m.; 4 Steph. Com. 105. 
But see Klieforth v. State, 88 Wis. 163, 59 
N. W. 507, 43 Am. St. Rep. 875, where it was 
held that it is day when there is daylight, 
enough to discern a person's' face. 

In the time of the English Saxons and' 
even till Henry I., time was computed by 
nights : as fortnight for two weeks. 

NIGHT WALKERS. Persons who sleep 
by day and walk by night: 5 Edw. III. c&gt; 
14; that is, persons of suspicious appear- 
ance and demeanor, who walk by night la 
many of the states there are statutes against 
this practice; 1 Bish. Cr. L. § 501, n. See 
State V. Dowers, 45 N. H. 543. Watchmen 
may undoubtedly arrest them ; and it i&amp; 
said that private persons may also do so ; 2 
Hawk. PI. Cr. 120. But see 3 Taunt 14 j 
Hamm. N. P. 135. See 4 Steph. Com. 227. 

NIHIL CAPIAT PER BREVE (Lat that 
he take nothing by his writ). The form of 
judgment against the plaintiff in an action, 
either in bar or in abatement When the 
plaintiff has commenced his proceedings by 
bill, the judgment is nihil capiat per hillam. 
Co. Litt. 363. 

NIHIL DIGIT (Lat. he says nothing). 
The name of the judgment rendered against 
a defendant who fails to put in a plea or 
answer to the plaintiffs declaration by the 
day assigned. In such a case, judgment i» 
given against the defendant of course, as 
he says nothing, why it should not. See 15 
Viner, Abr. 556; Dane, Abr. Index. 

NIHIL EST (Lat there is nothing). A 
form of return made by a sheriff where he 
has been unable to serve the writ "Al- 
though non est inventus is the more fre- 
quent return in such case, yet it is by no 
means so full an answer to the command 
of the writ as is the return of nihil. That 
amounts to an averment that the defendant 
has nothing in the baiUwick; no dwelling- 
house, no family, no residence; and no per- 
sonal presence to enable the officer to make 
the service required by the act of assembly. 
It is, therefore, a full answer to the exi- 
gency of the writ." Sherer v. Bank, 33 Pa. 
139. 

NIHIL HABET (Lat he has nothing). 
The name of a return made by a sheriff, 
marshal, or other proper officer, to a scire 
■facias or other writ, when he has not been 
able to serve it on the defendant Sullivan 
V. Johns, 5 Whart (Pa.) 367. 

Two returns of nihil In proceedings t» 
rem are, in general, equivalent to a service; 
Yelv. 112; Cumming v. Eden's Devisees, 1 
Cow. (N. T.) 70; CoUey v. Latimer, 5 S. &amp;. 
R. (Pa.) 211; Taylor v. Young, 71 Pa. 81. 

NIHILS. See NicHnxs. 



NIL DEBET 



2351 



NISI PRIUS KOLIi 



NIL DEBET (Lat lie owes nothing). 
The general issue in debt on simple con- 
tract. Gould. Pi. 284. It is in the following 
form : "And the said C D, by E F, his at- 
torney, comes and defends the wrong and in- 
Jury, when, etc., and says that he does not 
owe the said sum of money above demanded, 
or any part thereof, in manner and form as 
the said A B hath above complained. And 
of this the said O D puts himself upon the 
country." When, in debt on specialty, the 
deed is the only inducement to the action, 
the general issue is ml debet. Steph. PI. 174, 
n.; BuUis v. Giddens, 8 Johns. (N. Y.) 83. 
In English practice, by rule 11, Trinity 
Term, 1853, the plea of nil iieJ&gt;et was abol- 
ished; 2 Chitty, PI. 275. 

NIL HABUIT IN TENEMENTIS. (Lat.). 
A plea by which the defendant, who is sued 
by his landlord in debt for rent upon a lease, 
but by deed indented, denies his landlord's 
title to the premises, alleging that he has no 
interest in the tenements. 2 Lilly, Abr. 214 ; 
12 Viner, Abr. 184. 

NISI PRIUS (La:t. unless before). For 
the purpose of holding trials by jury. Im- 
portant words in the writ (venire) directing 
the sheriff to summon jurors for the trial of 
causes depending in the superior courts of 
law in England, which have come to be 
adopted, both in England and the United 
States, to denote those courts or terms of 
court held for the trial of civil causes with 
the presence and aid of a jury. 

The origin of the use of the term is to be traced 
to a period anterior to the institution of the com- 
mission of nisi prius in its more modern form. By 
Magna Carta it was provided that the common 
pleas should be held in one place, and should not 
follow the person of the king ; and by another 
clause, that assizes of novel disseisin and of mort 
d'ancestor, which were the two commonest forms 
of actions to recover land, should be held _ in the 
various counties before the justices in eyre.' A 
practice obtained very early, therefore, in the trial 
of trifling causes, to continue the cause in the su- 
perior court from term to term, provided the jus-, 
tices in eyre did not sooner (nisi priiis Justiciarii) 
come into ^the county where the cause of action 
arose, in which case they had jurisdiction when 
they so came. Bracton, I. Z, c. 1, § 11. By the 
statute of nisi prius, 13 Edw. I. .c. 30, enforced by 
14 Edw. III. c.'lG.-justices of assize were empowered 
to try common issues in trespass and other suits, 
and return them, when tried, to the superior court, 
where judgment was given. The clause was then 
left out of the continuance and inserted in the ve- 
nire, thus: "Prwcvpimus Hhi quod venire facias 
coram justiciariis nostris apud WestTn. in Octavis 
Scti MichCBliSj nisi talis et talis, tali d/le et loco, ad 
partes illas venerint duodedm" etc. (we command 
you that you cause to come before our justices at 
Westminster, on the octave of Sain^ Michael, un- 
less such and such a one, on such a day and place, 
shall come to those parts, twelve, etc.)^ Under the 
provisions of 42 Edw. III. c. 11, the clause is omitted 
from the venire, and the jury is respited in the 
court above, while the sheriff summons them to ap- 
pear before the justices, upon a habeas corpora 
juTOitorum, or, in the king's bench, a distringas. 
See Sell. Pr. Introd. Ixv. ; 1 Spence, Eq. Jur. 116 ; 3 
Shars. Bla. Com. 352-354; 1 Reeve, Hist. Bug. Law 
245, 382. 



See Assize; 
Pbius; Jubt. 



CouBT OF Assize and Nisi 



NISI PRIUS ROLL. The transcript of a 
case made from the record of the superior 
court in which the action is commenced, for 
use in the nisi prius court. 

It includes a history of all the proceed- 
ings in the case, including the declaration, 
plea, replication, rejoinder, issue, etc. It 
must be presented in proper manner to the 
nisi prius court. When a verdict has been 
obtained and entered on this record, it be- 
comes the postea, and is returned to the 
superior court. 

N I T H I N G . See Nidbelino. 

NO AWARD. The name of a plea in an 
action on an award. Barlow v. Todd, 3 
Johns. (N. Y.) 367. 

NO BILL. Words frequently Indorsed on 
a bill -of Indictment by the grand jury when 
they have not sufficient cause for finding a 
true bill. They are equivalent to Not found, 
or Ignoramus. State v. Fitch, 2 N. &amp; M'O. 
(S. C.) 558. 

NOBILITY. An order of men, in several 
countries, to whom special privileges are 
granted. The constitution of the United 
States provides. Art. 1, § 10, that "no state 
shall grant any title of nobility," and § 9, 
that "no title of nobility shall be granted by 
the United States; and no person holding 
any office of profit or trust under them shall, 
without the consent of congress, accept of 
any title of any kind whatever, from any 
king, prince, or foreign state." It is sihgu- 
lar that there should not have been a general 
prohibition against any citizen whatever, 
whether in private or public life, accepting 
any foreign title of nobility. An amendment 
for this purpose has been recommended by 
congress, but it has not been ratified by a 
sufficient number of states to make it a part 
of the constitution, probably from a grovring 
sense that it is unnecessary. Rawle, Const. 
120 ; Story, Const. § 1350 ; Federalist No. 84. 

NOCTANTER (By night). A writ which 
issued out of chancery and was . returned to 
the king's bench for the prostration of in- 
closures, etc. It was repealed by 7 &amp; 8 Geo. 
IV. c. 27. 

NOCTES DE FIRMA. In Domesday book 
understood of entertainment of meat and 
drink for so many nights. Toml. Law Diet. 
See Night. 

NOCUMENTUM (Lat harm, nuisance). In 
Old English Law. A thing done whereby an- 
other man is annoyed in his free lands or 
tenements. Also, the assize or writ lying for 
the same. Fitzh. N. B. 183; Old N. B. 108, 
109. Manw. For. Laws, c. 17, divides nocu- 
mentum into generate, commune, speoiale. 
Reg. brig. 197, 199; Coke, Will Case. Nom- 
mentum was also divided Into damnosum, 
for which no action lay, it being done by an 
irresponsible agent, and ihjuriosum, et dam- 
nosum, for which there were several reme- 
dies. Bracton 221 ; Fleta, lib. 4, c. 26, % 2. 



NOISE 



2352 



NOLLE PROSEQUI 



NOISE. See Nuisance; Injunction. 

NOL. PROS. See NoiiiiE Pkosequi. 

NOLENS VOLENS (Lat.). Whether wlU- 
ing or unwilling. 

NOLISSEMENt! In French Law. Af- 
freightment. Ord. Mar. liv. 3, t. 1. 

NOLLE PROSEQUI. An entry made on 
the record, by which the prosecutor or plain- 
tiff declares that he will proceed no further. 
See Tr. &amp; H. Pr. 566. 

A nolle prosequi may be entered either in 
a criminal or a civil case. In orirrvmal cases, 
before a jury is impanelled to try an indict- 
ment,' and also after conviction, 'the attomey- 
geilfeial has power to enter a nolle prosequi 
without the consent of the defendant; hut 
after a jury is impaiielled a nolle prosequi 
cannot be entered without the consent of the 
defendant ; Statfe v. Roe, 12 Vt. 93 ; State v. 
Fleming, 7 Humphr. (Tenii.) 152, 46 Am. 
Dee. 73; Diirham v. State, 9 Ga. 306. See 
Com. V. Cain, 102 Mass. 487 ; State v. Smith, 
49 N. H. 155, 6 Am. Rep. 480. it is for the 
prosecuting officer to enter a nol. pros, in his 
discretion; State v. Thompson, 10 N. C. 613; 
but in some states leave must be obtained 
of the court; Anonymous, 1 ya. Cas. 139; 
State Vi Roe, 12 Vt. 93. 

It may be entered as to one of several de- 
fendants;; 11 East 307. 

The effect of a nolle prosequi, when ob- 
tainejd, is to put the defendants without day ; 
but it does not operate as an acquittal ;• for 
he may be afterwards reindicted, and, it is 
said, even uponlhe, same indictment fresh 
process may be awarded; 6 Mod. 261; Com. 
Dig. /rodicimewt . (E) ; Com. v. Wheeler, 2 
Mass. 172; State v. Thornton, 35 N. C. 256. 
See 3 Cox, C. C. 93 ; Williams v. State, 57 Ga. 
478; Sta;te v. Primmi 61 Mo. 173. 
■ A nolle prosequi as to some of the counts 
in an indictment works no acquittal, but 
leaves the prosecution just as though such 
counts had never been inserted in the. indict- 
ment; Dealy V. U, S., 152 U. S.,539, 14 Sup. 
bt. '680, 38 L. E,d. 545, 

In civil cases, a: nolle prosequi is'consider- 
ed not to be of the iiature of a retraxit or 
release, as was formerly supposed; but an 
agreement only not to proceed .either against 
gome of the defendants, or as to part of the 
suit. Seel Wms. Saund. 207; 1 Chitty, PI. 
546. A nolle prosequi is now held to be no 
bar to, a future action for; the same cause, 
except in those cases where, froji the nature 
of the action, judgment and execution 
against one is a satisfaction of all the dam- 
ages sustained by the plaintiff; 3 Term 511. 

In civil cases, a nolle prosequi may be en- 
tered as to one of several counts ; Brown v. 
Feeter, 7 Wend. (N. Y.) 301; or to one of 
several defendants ; Minor v. Bank, 1 Pet. 
(U. S.)'80j 7 L. Ed. 47; as in the case of a 
joint contract, w;here one of two defendants 
pleads infancy, the plaintiff may enter a 



nolle prosequi as to him and proceed against 
the other; Woodward v. Newhall, 1 Pick. 
(Mass.) 500. 

See, generally, Beidman v. Vanderslice, 2 
Rawle (Pa.) 334; Grahame v. Harris, 5 Gill. 
&amp; J. (Md.)'489; Judson v. Gibbons, 5 Wend. 
(N. Y.) 224. 

An entry of nolle prosequi does not amount 
to a retraxit; it may be entered by plaintiff 
as to a part of the suit or as to one of the 
defendants where the action is joint and 
several, or where the defendants sever in 
their pleas ; but not as to a defendant in as- 
sumpsit where the action is joint (unless it 
be for some matter which may be pleaded 
for his personal discharge) ; Beidman v. Van- 
derslice, 2 Rawle (Pa.) 334. It rather re- 
sembles a continuance ; 1 Troub. &amp; Haly Pr. 
§ 566. 

NOLO CONTENDERE (Lat. I do not wish 
to contest). A plea sometimes accepted in 
criminal cases not capital whereby the de- 
fendant does not directly admit himself to 
be guilty, but tacitly admits it by throwing 
himself upon the mercy of the court ajad de- 
siring to submit to a small fine, which plea 
the court may either accept or decline. Chit- 
ty, Crim. L. 431. The difference in effect be- 
tween, this "implied confession" and a plea 
of guilty is that, after the latter, not guilty 
cannot be pleaded In an action of trespass 
for the same injury, whereas it may be 
pleaded at any time after the former. The 
defendant making this plea may take excep- 
tion in arrest of judgment for faults appar- 
ent on the record; id.- 

The acceptance of the plea is said to rest 
entirely upon the discretion of the trial 
judge ; State v. Henson, 66 N. J. L. 601, 50 
Atl. 468, 616; State v. La Rose, 71 N. H. 435, 
52 Ml. 943 ; Com. v. IngersoU, 145 Mass. 381, 
14 N. B. 449. This plea has the same effect 
in a criminal case as the plea of guilty, to 
the extent that judgment and sentence may 
be pronounced as if upon a verdict of guilty ; 
Com. V. IngersoU, 145 Mass. 381, 14 N. E. 
449; Clark, Grim. Proc. 374; Com. v. Hol- 
stine, 132 Pa. 361, 19 Atl. 273. The legal ef- 
fect of the plea is the same as that of a plea 
of guilty so far as all the proceedings on the 
indictment are concerned ; U. iS. v. Hartwell, 
3 Cliff. 221, Fed. Gag, No. 15,318; State v. 
Siddall, 103 Me. 144, 68 Atl. 634; State v. 
Judges, 46 N. J. L. 112 ; a sentence thereon is 
a "conviction" ; it is a waiver of all formal 
defects ; Com. v. Hinds, 101 Mass. 210 ; but 
defendant may still move in arrest of judg- 
ment; Com. V. Northampton, 2 Mass. 110. 

It is not admissible in a civil proceed- 
ing on the same facts to show that the de- 
fendant was guilty; White v. Creamer, 175 
Mass. 567, 56 N. E. 882. The plea, if ac- 
cepted, cannot be withdrawn arid a plea 
of not guiltgr entered except by leave of 
court; State v. Siddall, 103 Me. 144, 68 
Atl. 634 ; but in Buck v. Com., 107 Pa. 486, 



NOLO CONTENDERE 



2353 



NOMINAL DAMAGES 



the court held the plea to be equivalent 
to a confession which may be withdrawn 
at any time before sentence. That it was, 
at one time, accepted in England only where 
a fine was to be imposed, see Tucker v. 
U. S., 196 Fed. 260, 116 C. C. A. 62, 41 L. 
R. A. (N. S.) 70, holding that it cannot 
be accepted where the punishment must be 
imprisonment, but may be, in an internal 
revenue case; where, under some counts, 
the punishment must be imprisonment and 
under others a ftn6 alone. (The subject was 
here much discussed.) 

The cases are collected in 41 L. R. A. (N. 
S.) 70. 

In recent prosecutions under the Sherman 
act in the district court for the southern dis- 
trict of New York, Archbald, J., in accepting 
such plea, said: "This plea is a well recog- 
nized one and results in a sentence, and in 
that respect entirely, fulfills the law. I have 
received this plea in other courts." 

NOMEN (Lat). In Civil Law. A name of 
a person or thing. In a stricter sense, the 
name which declared the gens or family : as, 
Porcius, Cornelius; the cognomen being the 
name which marked the individual-: as Cato, 
Marcus; agnomen a name added to the cog- 
nomen for the purpose of description. The 
name of the person himself : e. g. nomen 
curiis addere. The name denoting the condi- 
tion of a person or class : e. g. nomen Wber- 
orum, condition of children. Cause or rea- 
son (pro causa out ratione) : e. g. nomine 
culpcB, by reason of fault. A mark or sign 
of anything, corporeal or incorporeal. No- 
men aupremum, i. e. God. Debt or obliga- 
tion of debt A debtor. See Calvinus, Lex. 

In Old English Law. A name. The Chris- 
tian name, e. g. John, as distinguished from 
tie family name ; it is also called prwnomen. 
Fleta, lib. 4, c. 10, §§ 7, 9; Law Fr. &amp; Lat. 
Diet. 

NOMEN COLLECTIVUM (Lat.). A word 
in the singular number which is to be under- 
stood in the plural in certain cases. Misde- 
meanor, for example, is a word of this kind, 
and when In the singular may be taken- as 
nomen collectivwm and including several of- 
fences. 2 B. &amp; Ad. 75. Heir, in the singu- 
lar, sometimes includes all the heirs. Felony 
is not such a term. 

NOMEN GENERALISSIMUM (Lat). A 
most universal or comprehensive term : e. g. 
land. 2 Bla. Com. 19 ; 3 id. 172 ; Tayl. Law 
Gloss. So goods. 2 Will. Ex. 1014. 

NOMINAL DAMAGES. A trifling sum 
awarded where a breach of duty or an in- 
fraction of the plaintiff's right is shown, /but 
no serious loss Is proved to have been sus- 
tained. 

Those awarded where, from the nature 
of the case, some injury has been done, the 
amount of which the proofs fail entirely to 
BoDV.— 148 



show; Bellingham B. &amp; B. C. R. Co. v. 
Strand, 4 Wash. 311, 30 Pac. 144. 

Wherever any act Injures another's right, 
and would be evidence in future in favor 
of a wrong-doer, an action may be sustained 
for an Invasion of the right without proof 
of any specific injury; 1 Wms. Saund. 346 
a; Bassett v. Mfg. Co., 28 N. H. 438 ; Chap- 
man V. Mfg. Co., 13 Conn. 269, 33 Am. Dec. 
401; and wherever the breach of an agree- 
ment or the Invasion of a right Is establish- 
ed, the law infers some damage, and if none 
is shown will award a trifling sum : as, a 
penny, one cent, six and a quarter cents, 
etc. ; Burnap v. Wight, 14 111. 301 ; Sedgw. 
Dam. 47; Field, Damages | 860. 

Thus, such damages may be awarded In 
actions for flowing lands ; Pastorlus v. Fish- 
er, 1 Rawle (Pa.) 27; Bassett v. Mfg. Co., 
28 N. H. 438; Injuries to commons; 2 East 
154; violation of trade-marks; 4 B. &amp; Ad. 
410; Infringement of patents; Lee v. Pills- 
bury, 49 Fed. 747 ; diversion of water-cours- 
es; 5 B. &amp; Ad. 1; Parker v. Griswold, 17 
Conn. 288, 42 Am. Dec. 739; Tillotson v. 
Smith, 32 N. H. 90, 64 Am. Dec. 355 ; but see 
Burden v. Mobile, 21 Ala. 309; McElroy v. 
Goble, 6 Ohio St. 187 ; trespass to lands ; 
Dixon V. Clow, 24 Wend. (N. Y.) 188 ; Car- 
ter V. Wallace, 2 Tex. 206; neglect of offi- 
cial duties, in some cases ; Goodnow v. Wil- 
lard, 5 Mete. (Mass.) 517; Bruce v. Petten- 
glll, 12 N. H. 341; breach of contracts; Hor- 
ton V. Bauer, 129 N. Y. 148, 29 N. B. 1 ; Ex- 
celsior Needle Ci3. v. Smith, 61 Conn. 66, 23 
Atl. 693; Watts v. Weston, 62 Fed. 136, 10 
C. G. A. 302 ; Dulaney v. Refining Co., 42 
Mo. App. 659; when substantial damages 
have not been sustained; Stock Quotation 
Tel. Co. V. Board of Trade, 44 111. App. 358 ; 
and many other cases where the effect of the 
suit will be to determine a right; 12 Ad. &amp; 
E. 488; Moulton v. Chapin, 28 Me. 505; 
Whitehead v. Ducker, ,11 Smedes &amp; M. 
(Miss.) 98; Henry v. Banking Co., 89 Ga. 
815, 15 S. E. 757; Weber v. Squler, 51 Mo. 
App. 601. And see. In explanation and limi- 
tation; 10 B. &amp; C. 145; 1 Q. B. 636; Paul 
V. Slason, 22 Vt. 231, 54 Am. Dec. 75; , Jen- 
nings V. Loring, 5 Ind. 250. 
- The title or right is as firmly established 
as though the damages were substantial; 
Sedgw. Dam. 47. As to its effect upon costs, 
see id. 55; Ryder v. Hathaway, 2 Mete. 
(Mass.) 96. 

See. Damages ; Measitke of Damages. 

NOMINAL PARTNER. One who allows 
his name to appear as a member of a firm, 
wherein he has no real interest. See Pabt- 

NEB. 

NOMINAL PLAINTIFF. One who is 

named as the plalntlfE in an action, but 
who has no interest in it, having assigned 
the cause or right of action to another, for 
whose use It Is brought. 
In general, he cannot interfere with the 



NOMINAL PLAINTIFF 



2354 



NON ACCEPTAVIT 



rights of his assignee, nor will he be per- 
mitted to discontinue the action, or to med- 
dle with It; Welch v. Mandeville, 1 Wheat. 
(U. S.) 233, 4 L. Ed. 79; Bisp. Eq. § 172; 
Greenl. Ev. § 178. 

NOMINATE CONTRACT. A contract dis- 
tinguished by a particular name, the use of 
which name determines the rights of all 
the parties to the contract: as, purchase 
and sale, hiring, partnership, loan for use, 
deposit and the like. The law thus super- 
sedes the necessity for special stipulations, 
and creates an obligation in the one party 
to perform, and a right in the other to de- 
mand, whatever is necessary, to the ex- 
plication of that contract. In Roman law 
there were twelve nominate contracts, with 
a particular action for each. Bell, Diet. 
Nominate and Innominate; Mackeldey, Civ. 
Law §§ 395, 408; Dig. 2. 14. 7. 1. 

NOMINATION. An appointment: as, I 
nominate A B executor of this my last will. 

A proposal or naming. The word nomi- 
nate is used in this sense in the constitution 
of the United States, art. 2, s. 2, § 2: the 
president "shall nominate, and by and with 
the consent of the senate shall appoint, am- 
bassadors," etc. 

In an agreement for reference, a provi- 
sion that each party shall nominate a ref- 
eree means not only naming him, but also 
the communication of the nomination to 
the other party. 17 L. J. Q. B. 2 ; 11 Q. B. 7. 

As to nominations under modern ballot 
lawsj see Election. 

NOMINE P(EN&gt;t (Lat. in the nature of 
a penalty). In Civil Law. A condition an- 
nexed to heirship by the will of the deceased 
person. Domat, Civ. Law; Hallifax, Anal. 

At Common Law. A penalty fixed by 
covenant in a lease for non-performance of 
its conditions. 2 Lilly, Abr. 221. 

It is usually a gross sum of money, 
though it may be anything else, appointed 
to be paid by the tenant to the reversioner, 
if the duties are in arrear, in addition to 
the duti.es themselves. Hamm. N. P. 411. 

To entitle himself to the notnine poenw, 
the landlord must make a demand of the 
rent on the very day, as in the case of a re- 
entry; 1 Saund. 287 6; 7 Co. 28 &amp;; Co. Litt 
202 a. A distress cannot be taken for a 
nomine pcenw unless a special power to dis- 
train be annexed to it by deed; 3 Bouvier, 
Inst n. 2451. See Bac. Abr. Rent (K 4) ; 
Dane, Abr. Index. 

NOMINEE. One who has been' named 
or proposed for an office. 

NOMOCANON. A body of canon law with 
the addition of imperial laws bearing upon 
ecclesiastical matters; also a collection of 
the canons of the ancient church and fathers 
without regard to the imperial constitutions. 

NON-ABILITY. Inability; an exception 
against a person. Pitz. Nat. Brev. 35, 65. 



NON ACCEPTAVIT (Lat. he did not ac- 
cept). The name of a plea to an action of 
assumpsit brought against the drawee of a 
bill of exchange upon a supposed acceptance 
by him. See 4 M. &amp; G. 561. 

NON-ACCESS. The non-existence of 
sexual intercourse between husband and 
wife is generally expressed by the words 
non-access of the husband to the wife; which 
expressions, in a case of bastardy, are under- 
stood to mean the same thing. 2 Stark, Bv. 
218, n. See Access. 

NON-AGE. By this term Is understood 
that period of life from birth till the ar- 
rival at twenty-one years. In another sense 
It means under the proper age to be of 
ability to do a particular thing; as, when 
non-age is applied to one under the age of 
fourteen, who is unable to marry. See Age. 

NON-APPARENT OR NON-CONTIN- 
UOUS EASEMENTS. Discontinuous ease- 
ments. Such that have no means specially 
constructed or appropriated to their enjoy- 
ment, and that are enjoyed at intervals, 
leaving between these intervals no visible 
sign of their existence; such as a right of 
way, or right of drawing a seine upon the 
shore. Fetters v. Humphreys, 18 N. J. Eq. 
262. See Easement. 

NON-ASSUMPSIT (Lat. he did not under- 
take). The general issue in an action of as- 
sumpsit. Andr. Steph. PI. 231. 

Its form is, "And the said C D, by E F, 
his attorney, comes and defends the wrong 
and injury, when, etc., and says that he 
did not undertake or promise, in manner 
and form as the said A B hath above com- 
plained. And of this he puts himself upon 
the country." 

Under this plea almost every matter may 
be given in evidence, on the ground, it is 
said, that as the action is founded on the 
contract, and the injury is the non-per- 
formance of it, evidence which disaffirms 
the obligation of the contract, at the time 
when the action was commenced, goes to 
the gist of the action. 1 B. &amp; P. 481. See 
12 Viner, Abr. 189; Com. Dig. Pleader (2 
G 1). 

NON ASSUMPSIT INFRA SEX ANNOS 

(Lat. he has not undertaken within six 
years). The plea by which, when pleadings 
were in Latin, the defendant alleged tliat 
the obligation was not undertaken and the 
right of action had not accrued within six: 
years, the period of limitation of the right to 
bring suit. See Limitation. It is still in 
use. 

NON BIS IN IDEM. In Civil Law. A 

phrase which signifies that no one shall 60 
ttctce tried lor the same offence: that is, 
that when a party accused has been once 
tried by a tribunal in the last resort, and 
either convicted or acquitted, he shall not 



NON BIS IN IDEM 



2355 



NON CONSTAT 



again be, tried. Code 9. 2. 9. 11; Merlin, 
Rupert. See Jeopabdt. 

NON CEPIT MODO ET FORMA (Lat. he 
did not take in manner and form). The 
plea which raises the general issue in an ac- 
tion of replevin; or rather which involves 
the principal part of the declaration, for, 
properly speaking, there is no general issue 
in replevin ; Morris, Repl. 142. 

Its form is, "And the said O D, by B F, 
his attorney, comes and defends the wrong 
and injury, when, etc., and says that he 
did not take the said cattle {or, goods and 
chattels, according to the subject of the 
action) in the said declaration mentioned, 
or any of them, in manner and form as the 
said A B hath above complained. And of 
this the said C D puts himself upon the 
country." 

It denies the taking the things and hav- 
ing them in the place specified in the decla- 
ration, both of which are material in this 
action. Steph. PI., Andr. ed. 239, n.; 1 
Chitty, PI. 490. 

NON-CLAIM. An omission or neglect by 
one entitled to make a demand vrithin the 
time limited' by law : as, when a continual 
claim ought to be made, a neglect to make 
such claim within a year and a day. 

NON-COMMISSIONED OFFICER. A 

subordinate officer who holds his rank not 
by commission from the executive authority 
of a state or nation, but by appointment by 
a superior officer. 

NON COMPOS MENTIS (Lat not of 
sound mind, memory, or understanding). A 
generic term, including all the, species of 
madness, whether it arise from idiocy, sick- 
ness, lunacy, or drunkenness. Co. Litt 247; 
4 Co. 124; 4 Comyns, Dig. 613; 5 id. 186; 
Shelf. liun. 1. See Insanity. 

NON CONCESSIT (Lat. he did not grant). 
In English Law. The name of a plea by 
which the defendant denies that the crown 
granted to the plaintiff, by letters^patent the 
rights which he claims as a concession from 
the king: as, for example, when a plaintiff 
sues another for the infringement of his 
patent right, the defendant may deny that 
the crown has granted him such a right. It 
does not deny the grant of a patent, but of 
the patent as described in the plaintiff's 
declaration ; 3 Burr. 1544 ; 6 Co. 15 6. Also 
a plea resorted to by a stranger to a deed, 
because estoppels do not hold with respect to 
strangers. It brought into issue the title of 
the grantor as well as the operation of the 
deed; Whart. Diet. 

NON-CONFORMISTS. A name given to 
certain dissenters from the rites and cere- 
monies of the church of England. 

NON CONSTAT j(Lat. it does not appear. 
It is not certain). Words frequently used, 
particularly in argument, to express dissat- 



isfaction with the conclusions of the other 
party: as, it was moved in arrest of judg- 
ment that the declaration was not good, be- 
cause non constat whether A B was seven- 
teen years of age when the action was com- 
menced. Swinb. pt. 4, § 22, p. 331. 

NON CULPABILIS. A plea of not guilty. 
It is usually abbreviated non cul.; 16 Viner, 
Abr. 1. 

Issue was joined thereon by the abbrevia- 
tion "prit"; i. e. paratus, ready to prove the 
prisoner guilty. In later years, the officer of 
the court began to apply these abbreviations 
to the prisoner: "Culprit, how wilt thou be 
tried?" This is commonly believed to be 
the origin of the word culprit. 4 Steph. 
Com. 340; New Engl. Diet. 

NON DAMNIFICATUS (Lat not Injured). 
A plea In the nature of a plea of perform- 
ance to an action of debt on a bond of in- 
demnity, by which the defendant asserts that 
the plaintiff has received no damage. 1 B. 
&amp; P. 640, n. o; 1 Saund. 116, n. 1; 2 id. 81; 
Douglass V. Clark, 14 Johns. (N. Y.) 177; 
Brent v. Davis, 10 Wheat. (U. S.) 396, 6 L. 
Ed. 350; Washington v. Young, 10 Wheat. 
(U. S.) 406, 6 L. Ed. 352. 

NON DEC I MAN DO. See De non Deci- 

MANDO. 

NON DEDIT. The general issue in forme- 
don. See Nb Dona Pas. 

NON DEMISIT (Lat he did not demise). 
A plea proper to be pleaded to an action of 
debt for rent, when the plaintiff declares on 
a parol lease. Gilb. Debt 436; Bull. N. P. 
177; 1 Chitty, PI. 477. A plea in bar, in 
replevin, to an avowry for arrears of rent, 
that the avowant did not demise. Morris, 
Repl. 179. It cannot be pleaded when the 
demise is stated to have been by indenture; 
12 Viner, Abr. 178; Com. Dig. Pleader (2 
W48). 

NON DETINET (Lat he does not de- 
tain). The general issue in an action of 
detinue. Its form is as follows : "And the 
said C D, by B P, his attorney, comes and 
defends the wrong and injury, when, etc., 
and says that he does not detain the said 
goods and chattels (or 'deeds and writings,' 
according to the subject of the action) in the 
said declaration specified ; or any part there- 
of, in manner and form as the said A B 
hath above complained. And of this the said 
C D puts himself upon the country." Andr. 
Steph. PI. 231. 

It puts in Issue the detainer only : a justi- 
fication must be pleaded specially; 8 DowL 
Pract. Cas. 347. It is a proper plea to an 
action of debt on a simple contract in the 
case of executors and administrators. 6 
East 549; Bac. Abr. Pleas (I); 1 Chitty,. 
PI. 476. See Detinet. 

NON-ENUMERATED DAY. Used to de- 
note a motion day in New York on wiiicli 



NON-ENUMERATED DAT 



2356 



NON FECIT VASTtJM 



the court Hears motions classified by the 
Code as "non-enumerated motions." Jack- 
son V. , 2 Caines (N. Y.) 259. 

NON EST FACTUM (Lat. is not Ms 
deed). In Pleading. A plea to an action 
of debt on a bond or other specialty. 

Its form is, "And the said C D, by B P, 
his attorniey, comes and defends the wrong 
and injury, when, etc., and says that the 
said supposed writing obligatory (or 'in- 
denture,' or 'articles of agreement,' accord- 
Ihg to the subject of the action) is not his 
deed. And of this he puts himself upon the 
country." Cleaton v. Chambliss, 6 Rand. 
(Va.) 86; Porter v. Martin, 1 Litt (Ky.) 
158. 

It is a proper plea when the deed is the 
foundation of the action; 1 Wms. Saund. 
38, note 3; 2 id. 187 «,■ note 2 ; 2 Ld. Raym. 
1500; Minton v. Woodworth, 11 Johns. (N. 
Y.) 476; and cannot be proved as declared 
. on ; 4 East 585 ; on account of non-execu- 
tion; 6 Term 817; or variance in the body 
of the instrument; 4 Maule &amp; S. 470; 2 
D. &amp; R. 662. Under this plea the plaintiff 
may show that the deed was void ab initio; 
Van Valkenburgh v. Rouk, 12 Johns. (N. T.) 
337; Stoever v. Weir, 10 S. &amp; R. (Pa.) 25; 
see Marine Ins. Co. v. Hodgson, 6 Cra. 219, 
3 L. Ed. 20O ; or became so after making and 
before suit; 5 Co. 119 6; 11 id. 27. See 1 
Chitty, PI. 417, n. 

In covenant, the defendant may, under 
this plea, avail himself of a mis-statement 
or omission of a qualifying covenant ; 9 East 
188; 1 Campb. 70; or omission of a condi- 
tion precedent; 11 East 639; 7 D. &amp; R. 
249. 

NON EST INVENTUS (Lat. he is not 
found). The sheriff's return to a writ re- 
■quiring him to arrest the person of the de- 
fendant, which signifies that he is not to be 
found within his jurisdiction. The return is 
usually abbreviated N. E. I. Chitty, Pr. 
The English form "not found" is also com- 
monly used. 

NON-FEASANCE. The non-performance 
of some act which ought to be performed, 

When a legislative act requires a person 
to do a thing, its non-feasance will subject 
the party to punishment: as, if a statute 
require the supervisors of the highways to 
repair such highways, the neglect to repair 
them may be punished. See 1 Russ. Or. 
48 ; Mandattjm. 

NON FECIT (Lat. he did not make it). 
The name of a plea, for example, in an ac- 
tion of assumpsit on a promissory note. 3 
M. &amp; G. 446. Rarely used; 

NON FECIT VASTUM CONTRA PROr 

HIBITIONEM (Lat. he did not commit 

waste against the prohibition). The name 

•of a plea to an action founded on a writ of 

■pstrepement, that the defendant did not com- 



mit waste contrary to the prohibition. 2 
Bla. Com. 226. 

NON IMPEDIVIT (Lat. he did not im- 
pede); The plea of the general issue in 
qiiare impedit. 3 Bla. Com. 305; 3 Woodd. 
Lect. 36. In law French, ne disturba pas. ' 

NON IMPLACITANDO ALIQUEM DE 
LIBERO TENEMENTO SINE BREVI. A 

writ to prohibit bailiffs, ,etp., from levying a 
distress upon any man without the king's 
writ touching his freehold. Cowell. 

NON INFREGIT CON VENTION EM (Lat. 
he has not broken the covenant). A plea hi 
an action of covenant. This plea is not a 
general issue; it merely denies that the de- 
fendant has broken the covenants on which 
he is sued. It being in the negative, it can- 
not be used where the breach is also in the 
negative. Bacon, Abr. Covenant (L) ; 3 
Lev. 19 ; 2 Taunt. 278 ; Phelps v. Sawyer, 1 
Aik. (Vt.) "150; Bender v. Fromberger, 4 
■Dall. (Pa.) 436, 1 L. Ed. 898; Roosevelt v. 
Fulton's Heirs, 7 Cow. (N. X.) 71. 

NON-INTERCOURSE. The refusal of 
one state or nation to have commercial in- 
tercourse with another. See EiiBAEGO. 

NON-INTERCOURSE ACT. An act pro- 
hibiting commercial intercourse with one or 
more foreign nations. On June 13, -1798, an 
act was passed suspending commercial in- 
tercourse between the United States and 
Ptance and her dependencies. On March 1, 

1809, an act was passed interdicting com- 
mercial intercqui;?e between the .United 
States and Great Britain and France, and 
their dependencies. The act forbade en- 
trance into' the ports or harbors of the Unit- 
ed States by the public vessels of England 
and France and imposed a penalty upon any 
citizen who should afford any aid or sup- 
plies to such public ships. It provided, more- 
over, that if any vessel sailing under the 
flag of Great Britain or France should, after 
May 20th following, enter the ports of the 
United States, it should be forfeited with its 
cargo. The importation of goods from Eng- 
land and France was forbidden to vessels of 
any nationality, subject to forfeiture of the 
imported articles. On June 28th a second 
act was passed providing that the former 
act should continue in force until the end of 
the next session of congress. On May 1, 

1810, a third act was passed forbidding Britr 
ish and French armed vessels to enter the 
ports of the United States. On March 2, 

1811, an act was passed providing that, in 
case Great Britain should revoke or modify 
her edict in violation of the neutral comr 
merce of the United States, the restrictions 
imposed by the act of March 1, 1809, should 
be removed. 

NON INTROMITTENDO QUANOO 
BREVE DE PR/ECIPI IN CAPITE SUB- 
DOLE IMPETRATUR. A writ which used 
to be directed to the justices of the bench 



NON INTROMITTBNDO 



2357 NON MERCHANDIZANDO VICTUALIA 



or in ■ eyre, commanding them not to give 
one who had (under cover of entitling the 
king to land, etc., as holding of him in 
capite) deceitfully obtained the writ, the 
benefit of the same, but to put him to his 
writ of right if he thought fit to use it. 
Cowell. 

NON-ISSUABLE PLEAS. Those upou 
which an issue would not determine the ac- 
tion upon the merits, as a plea in abater 
pient. 

NON-JOINDER. In Pleading. The omis 
sion of one or more persons who should have 
been made parties to a suit at law or in 
equity, as plaintiffs or defendants. 

In Equity. It must be taken advantage of 
. before the final hearing ; Kean v. Johnson, 9 
N. J. Eq. 401; California Electrical Works 
V. Flnck, 47 Fed. 583 ; except in very strong 
cases; Mechanics Bk. v. Seton, 1 Pet. (U. S.) 
299, 7 L. Ed. 152; as, where a party indis- 
pensable to rendering a decree appears to the 
court to be omitted ; Woodward v. Wood, 19 
Ala. 213. The objection may be taken by de- 
murrer, if the defect appear on the face of the 
bill; Spear v. Campbell, 4 Scam. (lU.) 424; 
Shubriek's Bx'rs v. Russell, 1 Des. (S. 0.) 315; 
or by plea, if it do not appear ; Gamble v. 
Johnson, 9 Mo. 605. The objection may be 
avoided by waiver of rights as to the party 
omitted ; Bull v. Bell, 4 Wis. 54 ; or a supple- 
mental bill filed, in some cases ; Ensworth v. 
Lambert, 4 Johns. Ch. (N. Y.) 605. It will 
not cause dismissal of the bill in the first in- 
stance; Pringle v. Carter, 1 Hill (S. C.) 53; 
but will, if it continues after objection made ; 
Lyde v. Taylor, 17 Ala. 270; without preju- 
dice; Picquet v. Swan, 5 Mas. 561, Fed. Cas. 
No. 11,135; Miller v. McCan, 7 Paige Oh. 
(N. Y.) 451. The cause is ordered to stand 
over in&lt; the first instance ; Colt v. Lasnier, 9 
Cow. (N. Y.) 320. See Joindeb; Paeties; 

MiSJOINDEE. 

In Law. See Abatement; Paeties. 
In England, the Judicature Act o( 1875, Drd. xvi., 
has made very full provisions as to the joinder of 
parties, and the consequences of misjoinder and 
non-joinder. All persons may be joined as plaintiffs 
in whom the right to any relief claimed is alleged 
to exist, whether jointly, severally, or in the alter- 
native. 

NON JURlblCUS. See Dies Non. 

NON JURORS. In EtigKsli Law. Persons 
who . refuse to take the oaths, . required by 
law, to support the government. See Moore 
V. Pew, 1 :Dall. (U. S.) 170, 1 L. Ed. 86. 

NON LIQUET (Lat. it is not dear). In 
Civil Law. Words by which the judges (/«- 
dices}, in a Roman trial', were accustomed to 
free themselves from the necessity of decid- 
ing a cause when the rights of the parties 
were doubtful. On the tablets which were 
given to the judges wherewith to indicate 
their judgment, was written N. L. 

See Ampliation. 



NON iVIERCHANDIZANDO VICTUALIA. 

An ancient writ directed to justices of assize 
commanding them to inquire whether the of- 
ficers of certain towns sold victuals in gross 
or by retail during the exercise of their of- 
fice, contrary to a statute then in force, and 
to punish them accordingly. Cowell; Reg. 
Orig. 184. 

NON MOLESTANDO. A writ which lay 
for him who was molested, contrary to the 
king's protection granted him. Cowell. 

NON OBSTANTE. In Engiisli Law. These 
words, which literally signify notwithstand- 
ing, were used to express the act of the Eng- 
lish king by which he dispensed with the 
law, tha,t is, authorized its violation. He 
would by his license or dispensation make 
an offence dispunishable which was malum 
in se; but in certain matters .which were 
mala proMHta he could, to certain persons 
and on special occasions, grant a non obstan- 
te. Vaugh, 330; 12 Co. 18; Bacon, Abr. 
Prerogative (D 7); 2 Reeve, Eng. C. L. 8, 
p. 83. 

That the crown might, by the royal pre- 
rogative, make a sheriff without the election 
of the judges, non obstante aliquo statute in 
contrarium, was held in Dyer 225, but the 
whole doctrine was abolished by the Bill of 
Rights. 

NON OBSTANTE VEREDICTO. Not- 
vyithstanding the verdict. See Judgment. 

Judgment non obstante veredicto, strictly 
and technically, is a judgment given for the 
plaintiff, on his motion, where the defendant 
had a verdict, but it appears from the record 
that, either from some matter grovring out 
of the pleading or because the fact found by 
the jury is immaterial, the defendant is not, 
in law, entitled to the judgment In such 
cases where the common-law practice pre- 
vails, a writ of inquiry is awarded to assess 
the damages; 2 Tidd, Pr. 920. "The right 
method ... is not to state the entry of 
judgment upon the verdict by rule, but to 
enter the verdict upon record, and then the 
judgment for the plaintiff non obstante ■vere- 
dicto.'.' id. For a statement of the nature 
and effect of such a judgment at common 
law, see Judgment. As appears from the 
definition there given, this was a judgment 
for the plaintiff, and in many of the states, 
it has been uniformly held that judgment 
non obstante veredicto can only be given for 
a plaintiff ; the remedy for a defendant is to 
have the judgment arrested ; Buckingham v. 
McCracken, 2 Ohio St 287 ; Bellows v. Shan- 
non, 2 Hill (N. Y.) 86. A motion by a defend- 
ant for a judgment non obstante veredicto is 
never allowable; Smith v. Powers, 15 N. H. 
546; Sheehy v. Duffy, 89 Wis. 6, 61 N. W. 
295; Bradley Fertilizer Co. v. Caswell, 65 
Vt. 231, 26 Atl. 956 ; Tillinghast v. McLeod, 17 
R. I. 208, 21 Atl. 345; Burnham v. R. Co., 17 
K. I. 544, 23 Atl. 638; Steph. PI. [98]; 1 



NON OBSTANTE VEREDICTO 2358 NON OBSTANTE VEREDICTO 



Freem. Judg. § 7 ; 1 Black, Judg. § 16 ; unless 
the well-settled common-law rule has been 
relaxed by statute or decisions ; German Ins. 
Co. V. Frederick, 58 Fed. 144,, 7 C. C. A. 122, 
19 TJ. S. App. 24. 

A motion for such judgment must be 
founded on the record alone; Stearn v. Clif- 
ford, 62 Vt. 92, 18 Atl. 1045 ; Smith v. Smith, 
2 Wend. (N. Y.) 624; it cannot be rendered 
after a judgment upon a verdict has been 
entered; State v. Bank, 6 Smedes &amp; M. 
(Miss.) 218, 45 Am. Dec. 280; Scheible v. 
Hart (Ky.) 12 S. W. 628. It is allowed where a 
verdict has been found for the defendant on 
an insufficient plea in avoidance; Jones v. 
Fennimore, 1 G. Greene (Iowa) 134; Dewey 
V. Humphrey, 5 Pick. (Mass.) 187; that is, 
where the plea confesses the action and en- 
tirely falls to avoid it; Martlndale v. Price, 
14 Ind. 115; or if found true, is neither bar 
nor answer; SuUenberger v. Gest, 14 Ohio 
204; or if an immaterial issue tendered by 
the plaintiff was found, for the defendant and 
a repleader was unnecessary to effect jus- 
tice; Shreve v. Whittlesey, 7 Mo.. 473; or if 
on motion for a new trial it is clear that in 
no event could damages be recovered on the 
cause of action; Ballou v. Harris, 5 B, I. 
419. But such a judgment will not be enter- 
ed where the evidence on material issues of 
fact was conflicting to such an extent as to 
require the submission of such issues to the 
jury ; Blazosseck v. Sherman Co., 141 Fed. 
j.022. 

In Pennsylvania, under a statute, where a 
point of law is reserved at the trial, the jury 
is instructed to find for the plaintiff, where- 
upon the defendant moves for judgment on 
the point reserved non obstante veredicto. 
See 2 Brewster, Prac. 1219. This statute is 
held by the United States supreme court to 
be not enforceable in the federal courts as 
being in conflict with the seventh amend- 
ment to the constitution ; Slocum v. Ins. Co., 
228 U. S. 364, 38 Sup. Ct. 523, 57 L. Ed. 879. 
See New Tbial. And in some other states, 
the technical common-law rule that this form 
of judgment should not be given for the de- 
fendant, has not been observed; though it 
would seem that this change of practice is 
due, in some degree, to the confusion of this 
subject with judgment on special verdicts 
aqd points reserved, 4nd to the fact that 
judgments are frequently entered under the 
name non obstante veredicto, which properly 
and technically would not be such if the 
common-law distinctions were carefully ob- 
served. Such judgment for defendant has 
been entered in an action for damages where 
a plea of contributory negligence was not 
controverted; LouIsvUle &amp; N. R. Co. v. May- 
field (Ky.) 35 S. W. 924; or where plaintiff's 
evidence is a mere scintilla; Holland v. Kin- 
dregan, 155 Pa. 156, 25 Atl. 1077; or where 
special findings in plaintiff's. favor were set 
aside as against undisputed evidence, and de- 



fendant moved for judgment on the femainr 
ing findings and undisputed evidence; Menor 
minee E. S. &amp; Door Co. v. E. Co., 91 Wis. 
447, 65 N. W. 176. But such statute does 
not apply to a case in which the jury dis- 
agreed ; McKinnon v. Rynklevicz, 145 Fed. 
863; and such motion by defendant will 
not be granted where the defence is a gen- 
eral denial; Virgin Cotton Mills v. Aber- 
nathy, 115 N. C. 402, 20 S. B. 522; or 
where the pleadings and evidence raise ques- 
tions of fact proper for a jury; Slivitski 
V. Wien, 93 Wis. 460, 67 N. W. 730; or where 
the evidence supports a verdict for plaintiff, 
but the undisputed facts show the transac- 
tion to be within the statute of frauds ; Tem- 
pleman v. Gibbs (Tex.) 25 S. W. 736. A res- 
ervation of "the question whether there is 
any evidence in this case, to be submitted 
to the jury, on which plaintiff is entitled to 
recover," does not present a "point reserved" 
to authorize judgment for defendant non 
obstante veredicto; Yerkes v. Richards, 170 
Pa. 346, 32 Atl. 1089 ; nor can such judgment 
be rendered for plaintiff where verdict is 
for defendant, subject to the question reserv- 
ed whether, notwithstanding the findings, 
plaintiff was not entitled to recover; Hosier 
V. Hursh, 151 Pa. 415, 25 Atl, 52. Where 
there was a verdict for plaintiff subject to 
the opinion of the court on the question of 
law reserved, the court directed Judgment 
for defendant non obstante veredicto, saying 
that it had the same effect as a directed 
verdict; Casey v. Pav. Co., 109 Fed. 744, af- 
firmed 114 Fed. 189, 52 C. C. A. 145. 

A motion for such judgment is properly 
denied, after verdict upon an issue distinctly 
raised by the answer and submitted to the 
jury without objection; Lewis v. Foard, 112 
N. C. 402, 17 S. E. 9;, or where the evidence 
is suflieient to support the verdict; Fruchey 
V. Eagleson, 15 Ind. App. 88, 43 N. E. 146; 
or where, after reserving a point on certain 
facts, other evidence is submitted to the 
jury, and it is uncertain on which evidence 
the jury found; Keifer v. Eldred Tp., 110 
Pa. 1, 20 Atl. 592. 

It is not sufficient that the verdict was 
contrary to the weight of the evidence ; Man- 
ning V. Orleans, 42 Neb. 712, 60 N. W. 953: 
and the judgment can be entered only when 
the moving party is entitled to it upon the 
pleadings of the party who had the verdict ; 
Gibbon v. Loan Ass'n, 43 Neb. 132, 61 N. W. 
126. 

In Ohio, judgment against a general ver- 
dict cannot be entered unless all the facts 
necessary to support such judgment are ex- 
pressly found; Falrbank &amp; Co. v. R. Co., 66 
Fed. 471. In Indiana, a judgment non ob- 
stante will not be granted unless there is an 
irreconcilable conflict between the general 
verdict and the answer to the interrogato- 
ries; British-American Assur. Co. v. Wilson, 
132 Ind. 278, 31 N. E. 938. When "the special 



NON OBSTANTE VEREDICTO 



2359 



NON PROS 



finding of facts Is inconsistent witti the gen- 
eral verdict, tlie former controls the latter, 
and the court may give judgment according- 
ly ; School Dlst. v. Lund, 51 Kan. 731, 33 Pac. 
595. In Oregon, there is a statutory provi- 
sion authoriziug judgment for the other par- 
ty where the verdict does not correspond 
with pleadings, and it is held that that right 
is not impaired by falling to move for judg- 
ment before verdict; Benida Agr. Works v. 
Oreighton, 21 Or. 495, 28 Pac. 775, 30 Pac. 
676. In Minnesota, such judgment can be 
given only to a party who, after the testi- 
mony, moved to direct a verdict in his fa- 
vor; Hemstad v. Hall, 64 Minn. 186, 66 N. 
W. 366j In Kansas, by statute, such a judg- 
ment may be entered by the court in favor 
of the party against whom an adverse ver- 
dict has been rendered; Ft. Scott v. Broker- 
age Co., 117 Fed. 51, 54 C. C. A. 437. 

In many states there are statutes on the 
subject which must be considered in connec- 
tion with the decisions. 

NON MITT AS (Lat. more fully, non 
omittas propter libertatem, do not omit on 
account of the liberty or franchise). There 
were districts or liberties in England in re- 
gard to which grants were formerly made by 
the crown to individuals, conferring on them 
or their bailiffs the exclusive privilege of 
executing legal process therein. When it be- 
came necessary to execute a writ in such a 
. liberty, it was framed with a clause of non 
omittas specially authorizing the sheriff to 
enter; 2 Steph. Com. 683. This clause is 
now usually inserted in all processes ad- 
dressed to sheriffs. Wharton, Lex. ; 3 Chitty, 
Pr. 190, 310. 

NON-PLEVIN. In Old English Law. A 

neglect to replevin land taken into the hands 
of the king upon default, within fifteen days, 
by which seisin was lost, as by default. 
Heugh. de Magn. Ch. c. 8. By 9 Bdw. III. 
c. 2, no man shall lose his land by non-plevin. 

NON PONENDIS IN ASSISSIS ET JU- 
RAT IS. A writ which lay for persons who 
are summoned to attend the assizes or to 
sit on a jury and wish to be freed and dis- 
charged from the same. Reg. Grig. 100. 

NON PROCEDENDO AD ASSISSAM RE- 
GE INCONSULTO. A writ to put a stop to 
the trial of a cause appertaining unto one 
who is in the king's service, etc., until the 
king's pleasure respecting the same be 
known. Cowell. 

NON PROS. An abbreviation of non pro- 
sequitur, he does not pursue. Where the 
plaintiff, at any stage of the proceedings, 
fails to prosecute his action, or any part of 
it, in due time, the defendant enters non 
prosequitur, and signs final judgment and ob- 
tains costs against the plaintiff, who is said 
to be non pros'd. 2 Archb. Pr., Chitty ed. 
1409; 3 Bla. Com. 296; 3 Chitty, Pr. 10; 
Caines, Pr. 102. The name non pros, is ap- 



plied to the judgment so rendered against 
the plaintiff; 1 Sell. Pr.; Steph. PI. 195. 

When entered by defendant under a rule 
of court for failure to file a statement of 
claim within a year, it is said to be final; 
Patton's Pr. in Pa. 67 ; but no case is cited. 
See NoLUB Peosequl 

NON-RESIDENCE. In Ecclesiastical Law. 
The absence of spiritual persons from their 
benefices. 

NON-RESIDENT. Not residing In the ju- 
risdiction. Service of process on non-resi- 
dent defendants Is void, excepting cases 
which proceed in rem, such as proceedings 
in admiralty or by foreign attachment, and 
the like, or where the property in litigation 
Is within the jurisdiction of the court 

One does not necessarily become a non- 
resident by absconding or absenting himself 
from his place of abode; Lindsey v. Dixon, 
b^ Mo. App. 291 ; nor does a mere casual or 
temporary absence on business or pleasure 
render one a non-resident, even if he may 
not have a house of usual abode In the state ; 
Crawford v. Wilson, 4 Barb. (N. Y.) 504; 
if there be no intent to change his residence ; 
Fitzgerald v. McMurran, 57 Minn. 312, 59 
N. W. 199. But where a man has a settled 
abode, for the time being, in another state 
for the purpose of business or pleasure, he 
is a noh-resident ; Hanson v. Graham, 82 
Cal. 631, 23 Pac. 56, 7 L. R. A. 127; and it 
has been held that one who departs from the 
state with his famUy and remains absent 
for about a year Is a non-resident, though 
he has not acquired a residence elsewhere, 
and though he intended to return In a few 
months ; Hanover N. Bk. v. Stebbins, 69 Hun 
308, 23 N. Y. Supp. 529. See Home; Domi- 
ciL ; Residence ; Process ; Seevice. 

NON RESIDENTIA PRO CLERICIS RE- 
GIS. A writ addressed to a bishop charging 
him not to molest a clerk employed in the 
king's service, by reason of his non-residence. 
Cowell; Reg. Orig. 58. 

NON SOLVENDO PECUNIAM AD QUAM 
CLERICUS MULCTATUR PRO NON RESI- 
D^ENTIA. A writ prohibiting an ordinary 
from taking a pecuniary mulct imposed up- 
on a clerk of the king's for non-residence. 
Cowell. 

NON SUBMISSIT (Lat.). The name of a. 
plea to an action of debt on a bond to per- 
form an award, by which the defendant 
pleads that he did not submit. Bacon, Abr. 
ArWtration, etc. (G). 

NON SUM INFORMATUS (Lat). I am 

not informed. See Judgment. 

NON TENENT INSIMUt (Lat they do 
not hold together). A plea to an action in 
partition, by which the defendant denies that 
he holds the property which is the Subject 
of the suit, together with the complainant 
or plaintiff. 



NON" TENUIT 



2360 



NONSENSE 



NON TENUIT (Lat. he did not hold). The 
name of a plea In bar in replevin, when the 
defendant has avowed for rent-arrear, by 
which the plaintiff avows that he did not 
hold in manner and form as the avowry al- 
leges. Rose. Real Act. 628. 

NON-TENURE. A plea in a real action, 
by which the defendant asserted that he did 
not hold the land, or at least some part of 
it, as mentioned in the plaintiff's declara- 
tion. 1 Mod. 250 ; in which case the writ 
abates as to the part with reference to 
which the plea is- sustained ; Green v. Liter, 
8 Cra. (U. S.) 242, 3 L. Ed. 545. It may be 
pleaded with or without a disclaimer. It 
was- a dilatory plea, though not strictly in 
abatement; 2 Saund. 44, n. 4; Dy. 210; 
Booth, Real Act. 179; Hunt v. Sprague, 3 
Mass. 312; but might be pleaded as to part 
along with a plea in bar as to the rest; 1 
Lutw. 716; East. Ent. 231 o, &amp;; and was sub- 
sequently considered as a plea in bar; Otis 
V, Warren, 14 Mass. 239; Miles v. Peirce, 2 
N. H. 10; Bac. Abr. Pleas (I 9). 

NON-TERM. The vacation between two 
terms of a court. 

NON-TRADING PARTNERSHIP. A part- 
nership organized for carrying on the .busi- 
ness of sawing lumber pickets and lath is 
non-trading in character ; Dowling v. Bank, 
145 U. S. 512, 1,2 Sup. Ct. 928, 36 L. Ed. 795, 
reversing National Exch. Bank v. White, 
80 Fed. 413. 

NON-USER. The neglect to make use of 
a thing. 

A right which may be acquired by use 
may be lost by non-user; and an absolute 
discontinuance pf the use for twenty years 
afCords presumption of the extinguishment 
of the right in favor of some other adverse 
right; Dyer v. Depui, 5 Whart. (Pa.) 584; 
Williams v. Nelson, 23 Pick. (Mass.) 141, 84 
Am. Dec. 45; but non-user of the franchise 
of a corporation is held insufficient to consti- 
tute a dissolution of the same without a Judi- 
cial adjudication thereof; Parker v. Hotel 
Co., 96 Tenn. 252, 34 S. W. 209, 31 L. R. A. 
706. 

See DissoLTjTioK ; Foefkittibe. 

A right of way, by grant or prescrip- 
tion, is not extinguished by the habitual use 
by its owner of another way, equally con- 
venient, instead of it, unless there is an in- 
tentional abandonment of the former way ; 
Jamaica Pond Aqueduct Corp. v. Chandler, 
121 Mass. 3. See Abandonment ; Easement. 

Every public officer is required to use his 
office for the public good; a non-user of a 
public office is, therefore, a sufficient cause 
of forfeiture; 2 Bla. Com. 158; 9 Co. 50. 

As to repeal of a statute by non-user, see 
Obsoubtk. 

NONSENSE. That which in a written 
agreement or will is unintelligible. 
It is a rule of law that an instrument shall 



be so construed tliat the whole, If possible, 
shall stand. When a matter is written gram- 
matically right, but it is unintelligible and 
the whole makes nonsense, some words can- 
not be rejected to make sense of the rest-; 
1 Salk. 324 ; but when matter is nonsense by 
being contrary and repugnant to some pre- 
cedent sensible matter, such repugnant mat- 
ter is rejected; 14 Viner, Abr. 142; 15 id. 
560. The maxim of the civil law on this 
subject agrees with this rule: Quw in testa- 
menio ita sunt scripta ut intelUgi non pos- 
sentj perinde sunt ac si scripta non esservt. 
Dig. 50. 17. 73. 3. See AMBiotriTT ; Inteephe- 
TATioN. In pleading, when matter is non- 
sense by being contradictory and repugnant 
to feoinething precedent, the precedent matter, 
which is sense, shall not be defeated by the 
repugnancy which follows, but that which 
is contradictory shall be rejected: as In 
ejectment where the declaration is of a de- 
mise on the second day of January, and that 
the defendant postea scilicet, on the first of 
January, ejected him, here the scilicet may 
be rejected as being expressly contrary to 
the postea and the precedent matter ; 5 Bast 
255 ; 1 Salk. 324. 

NONSUIT. The name of a judgment giv- 
en against the plaintiff when he is unable 
to prove a case, or when he refuses or neg- 
lects to proceed to the trial of a cause after 
it has been put. at issue, without determining 
such issue. 

In construing a statute such as those ex- 
isting in some states, extending the statute 
of limitations after a nonsuit is "suffered" 
so as to facilitate the bringing of a new 
suit a nonsuit has been defined as "any judg- 
ment of discontinuance or dismissal whereby 
the merits are left untouched" ; Mason v. 
R. Co., 226 Mo. 212, 125 S. W. 1128, 26 L. R. 
A. (N. S.) 914; and under this statute the 
dismissal of a cause for want of prosecution 
was held to be' a nonsuit; Meddis v. Wil- 
son, 175 Mo. 126,, 74 S. W. 984; and the ex- 
tension of the limitation was held not to be- 
gin to run until judgment on appeal from 
the nonsuit; Hewitt v. Steele, 136 Mo. 334, 
38 S. W. 82. 

A voluntary nonsuit is an abandonment of 
his cause by plaintiff, who allows a judgment 
for costs to be entered against him by ab- 
senting himself or failing to answer when 
called upon. Runyon v. R. Co., 25 N. J. L. 
556. 

After the trial is begun, It Is held in many 
jurisdictions that the plaintiff's right to take 
a nonsuit is not absolute, but lies in the 
discretion of the court, and will be denied 
when plaintiff gets all his own evidence in 
and is not surprised by defendant's evi- 
dence ; Johnson v. Bailey, 59 Fed. 670, where 
many cases are cited which support the de- 
cision. But the practice in many Jurisdic- 
tions is otherwise, particularly where the 
common law is adhered toi and it is permis- 



NONSUIT. 



2361 



NONSUIT 



sible to take a voluntary nonsuit at any 
time before verdict is rendered; Bradshaw 
V. Earnshaw, 11 App. D. C. 495 ; Lay v. Col- 
lins, 74 Ark. 536, 86 S. W. 281 ; New Hamp- 
shire Banking Co. v. Ball, 57 Kan. 812, 48 
Pac. 137; Woodward v. Woodward, 84 Mo. 
App. 328; Helwig v. Judge, 73 Mich. 258, 
41 N. W. 268 ; Beals v. Tel. Co., 53 Neb. 601, 
74 N. W. 54. This is spmewhat modified 
where the defendants set up a counter-claim 
(as to which, see infra) ; Summer v. Kelly, 
38 S. C. 507, 17 S. E. 364 ; Toulouse v. Pare, 
103 Cal. 251, 37 Pac. 146. 

If a nonsuit is proper, to grant it prema- 
turely is harmless error; Vincent v. Pac. 
Grove, 102 Oal. 405, 36 Pac. 773. Defendant 
waives his motion for a nonsuit and cannot 
base any claim of error upon it, where, after 
it is overruled, he proceeds with his defence 
and introduces testimony ; BogK v. Gassert, 
149 U. S. 17, 13 Sup. Ct. 738, 37 L. Ed. 631; 
Runkle v. Burnham, 153 U. S. 216, 14 Sup. 
Ct., 837, 38 L. Ed. 694. Exception cannot be 
taken to the court's refusal to enter a com- 
pulsory nonsuit; Medary v. Gathers, 161 Pa. 
S7, 28 Atl. 1012. 

After a voluntary nonsuit taken by the 
plaintiff, the court may reinstate the case; 
Rhargless v. Sevier, 1 Overt. (Tenn.) 117; 
but it Is said, that the reinstatement is not 
as a matter of right; Grant v. Burgwyn, 88 
N. C. 95. The case is still within the juris- 
diction of the coui't, so as to entitle it to va- 
•cate the judgment on a showing of mistake ; 
Palace Hardware Co. v. Smith, 134 Cal. 381, 
66 Pac. 474; but it has been held that the 
court has no authority to reinstate it against 
the consent of the defendant; Simpson v. 
Brock, 114 Ga. 294, 40 S. E. 266; although 
if the record shows that the court has acted 
irregularly and unadvisedly, it may and 
should, so long as its jurisdiction over the 
matter continues, reverse its action; Horton 
V State, 63 Neb. 34, 88 N. W. 146. 

An irmoluntary nonsuit takes place when 
the plaintiff, on being called, when his case 
is before the court for trial, neglects to ap- 
pear, or when he has given no evidence on 
which a jury could find a verdict. Pratt v. 
Hull, 13 Johns. (N. Y.) 334. 

At common law the plaintiff cannot be 
nonsuited against his will ; for a party can- 
not be compelled to make default. 

There is much difference of practice in the 
United States as to the granting of nonsuits 
or orders dismissing causes. In many of the 
state courts involuntary nonsuits are not 
allowed, either as matter of practice or be- 
cause, as it is ,put in some cases, there is no 
authority to grant it In some of the states 
there are statutes under which such nonsuits 
are authorized. And where there was a 
statute authorizing a nonsuit, it could only 
be granted upon the ground and in the man- 
ner therein provided; J^urns v. Rodefer, 15 
Nev. 59. Among the cases from states, in 



which involuntary nonsuits are not allowed, 
are: Williams v. Port, 9 Ind. 551; Hill, M. 

6 Co. V. Kucker, 14 Ark. 706; Cahill v. Ins. 
Co., 2 Dougl. (Mich.) 124, 43 Am. Dec. 457; 
Scruggs V. Brackin, 4 Yerg. (Tenn.) 528; 
Winston v. Miller, 12 S. &amp; M. (Miss.) 550; 
Thweat v. Pinch, 1 Wash. (Va.) 217; Kettle- 
well V. Peters, 23 Md. 312.; French v. Smith, 
4 Vt. 363, 24 Am. Dec. 616 ; Huston v. Berry, 
3 Tex. 235; Mitchell v. Ins. Co., 6 Pick. 
(Mass.) 117; Saunders v. Coffin, 16 Ala. 421; 
Bryan v. Pinney, 3 Ariz. 34, 21 Pac. 332; 
Rankin v. Curtenius, 12 111. 334. 

It has been frequently said that an invol- 
untary nonsuit cannot be ordered in a feder- 
al court ; Doe v. Grymes, 1 Pet. (U. S.) 469, 

7 L. Ed. 224 ; Crane v. Morris, 6 Pet. (U. S.) 
598, 609, 8 L. Ed. 514; Silsby v. Poote, 14 
How. (U. S.) 218, 14 L. Ed. 394; Castle v. 
BuUard, 23 How. (U. S.) 172, 188, 16 L. Ed. 
424; Oscanyan V. Arms Co., 103 U. S. 261, 
26 L. Ed. 539; but in Central Trans. Co. v. 
Car Co., 139 U. S. 24, 11 Sup. Ct. 478, 35 L. 
Ed. 55, the court after citing the above cases 
said: "Yet, instead of overruling, upon that 
ground alone, exceptions to a refusal to or- 
der a nonsuit, this court, more than once, 
has considered and determined questions of 
law upon the decision of which the nonsuit 
was refused in the court below," citing Crane 
V. Morris and Castle v. Bullard, supra, . and 
the court proceeded to consider the case on 
the merits and affirmed the judgmeilt of non- 
suit, apparently following the action of the 
court below which was in accordance with 
a Pennsylvania statute providing for such 
practice in the state courts. And that case 
was cited with approval in Coughran v. Big- 
elow, 164 U. S. 301, 17 Sup. Ct. 117, 41 L. 
Ed. 442, where the cases denying the power 
to grant an involuntary nonsuit are said to 
have been based "upon the absence of au-, 
thority, whether statutory or by a rule pro- 
mulgated by this court," and the action un- 
der the state statute is approved and taken 
as authority "that granting a nonsuit for 
want of sufficient evidence is not an infringe- 
ment of the constitutional right of trial by 
jury." 

The reason for refusing to permit compul- 
sory nonsuits is given; in Booe v. Davis, 5 
Blackf. (Ind.) 115, 33 Am. Dec. 457, in these 
words: "The plaintiff has a right to have 
every question of fact in his case tried by a 
jury ; and to nonsuit him on the trial, against 
his consent, would be an infringement of that 
right." In one case it wa_s held that the 
court had no power to dismiss a suit on the 
ground that it appeared from the evidence 
that the contract sued on was illegal and 
void; Hudson v. Strickland, 49 Miss. 591. 
In French v. Smith, supra, it was said : "In 
this state, where the right of review is given 
by statute, a nonsuit should not be ordered 
at the first trial, as the plaintiff may be able 
to supply the defects in his first proofs ; nor 



NONSUIT 



2362 



NONSUIT 



at the last, because public policy will then 
require that the controversy should be end- 
ed." 

Cases in which it is held that the power ot 
compulsory nonsuit exists are: Bailey v. 
Kimball, 26 n! H. 351 ; Naugatuck R. Co. v. 
Button Co., 24 Conn. 468; Ensminger v. Mc- 
Intire, 23 Cal. .593; Ellis v. Trust Co., 4 
Ohio St. 628, 64 Am. Dec. 610 ; TurnbuU v. 
Elvers, 3 McCord (S. O.) 131, 15 Am. Dec. 
622; Spensley v. Ins. Co., 54 Wis. 433, 11 
N. W. 894; Deyo v. R. Co., 34 N. Y. 9, 88 
Am. Dec. 418. In Warren v. McGill, 108 Cal. 
153, 37 Pac. 144, a motion was held to have 
been properly overruled because there was 
some evidence tending to prove plaintiff's 
case, but the power was recognized. A 
nonsuit should be allowed where, on the im- 
controverted facts, the plaintiff is not en- 
titled to recover, or if he did the verdict 
would be set aside; Aycrigg's Ex'rs v. R. 
Co., 30 N. J. L. 460; People v. Ins. Bxch., 
126 111. 466, 18 N. E. 774, 2 L. R. A. 340; and 
where a verdict for the plaintiff would be 
clearly against the weight of evidence so 
that it must be set aside if rendered, a non- 
suit should be granted; Wilds v. R. Co., 24 
N. T. 430; but there must be absolutely no 
evidence to support the plaintiff's claim in 
order to entitle the defendant to a nonsuit; 
Potter V. Mellen, 36 Minn. 122, 30 N. W. 438. 

The legitimate ground for a nonsuit is 
either that the plaintiff has alleged no legal 
cause of action, or that there is no evidence 
to support his case. It is not the duty of 
the court to determine the question on the 
preponderance of evidence; that is for the 
jury; Bayley v. R. Co., 125 Mass. 65; and 
the refusal of the court to withdraw the 
case from the jury is not to be treated as 
indicating its opinion that the plaintiff 
should have a verdict, he simply does his 
duty in submitting the case to the jury even 
if he considers the preponderance of evi- 
dence to be against the plaintiff ; if the evi- 
dence taken altogether raises a question of 
fact, it should go to the jury ; Gaynor v. Ry. 
Co., 100 Mass. 212, 97 Am. Dec. 96; Warren 
V. R. Co., 8 Allen (Mass.) 227, 85 Am. Dec. 
700. 

Where an issue has been directed, the 
court in which it is tried cannot grant a 
nonsuit, but must have a trial and report 
the result of it; Woolfolk v. Mfg. Co., 22 
S. C. 332. Where a case entitling the plain- 
tiff to relief is not established by the plead- 
ings nor the evidence, a nonsuit is proper; 
Manzy v. Hardy, 13 Neb. 36, 13 N. W. 12; 
and when any essential element of the plain- 
tiff's case is wholly without proof; Murphy 
V. R. Co., 45 la. 661 ; Long v. Lewis, 16 Ga. 
154. 

By section 4 of the act of July 20, 1892, 
U. S. Comp. St. (1901) 707, of which section 
1 was amended by act of June 25, 1910, id. 
(1911) 273, it is provided for suits in the 



federal courts in forma pauperis, the court 
may dismiss such cause if It appear that the 
allegation of poverty is untrue or the alleged 
cause of action is frivolous or malicious. In 
a suit under this statute, the circuit court 
of appeals held that the statute applied, 
but added that, independently of the statute, 
any court of general jurisdiction has power 
to dismiss frivolojis proceedings which upon 
the face of the pleadings present no legal 
cause of action ; O'Connell v. Mason, 132 Fed. 
245, 65 C. C. A. 541. Where the declaration 
stated no cause of action, the court refused 
leave to defendant to withdraw his plea and 
demur and dismissed the suit on its own mo- 
tion; Webb V. Fisher, 109 Tenn. 702, 72 S. 
W. 110, 60 L. R. A. 791, 97 Am. St. Rep. 863. 
On opening statement of counsel. In many 
cases the trial court exercises the author- 
ity to direct a verdict or enter a nonsuit 
where the opening statement of plaintiff's 
counsel shows unmistakably that if the facts 
stated were proved there could be no recov- 
ery; Hornblower v. University, 31 App. D. 
C. 64; Pratt v. Conway, 148 Mo. 299, 49 S. 
W. 1028, 71 Am. St. Rep. 602; Jordan v. 
Reed, 77 N. J. L. 584, 71 Atl. 280. Such 
may be the case and such action may be 
warranted where the statement ddscloses 
that the cause of action was a corrupt con- 
tract or one void as unlawful or against 
public policy; Oscanyan v. Arms Co., 103 
U. S. 261, 26 L. Ed. 539; Crisup v. Gross- 
light, 79 Mich. 380, 44 N. W. 621. It should 
not be done unless it clearly appears (1) 
that the complaint does not state a. cause of 
action; (2) that a cause of action well stat- 
ed is clearly defeated by some defense inter- 
posed and admitted as a fact; or (3) that 
the statement of the plaintiff's case has com- 
pletely ruined it by some admission or state- 
merit of fact; Hoffman House v. Foote, 172 
N. Y. 350, 65 N. E. 169; Montgomery v. 
Boyd, 78 App. DIv. 65, 79 N. Y. Supp. 879. 
So a motion to dismiss may be granted if it 
appears from the opening statement that the 
cause of action did not survive to plaintiff; 
Hey V. Prime, 197 Mass. 474, 84 N. E. 141, 17 
L. R. A. (N. S.) 570 (but the court may, in 
its discretion, withhold the decision untU all 
the evidence, or the . plaintiff 's, is in); or 
that the claim is barred by the statute of 
limitations; Preusse v. Hotel Co., 134 App. 
Dlv. 384, 119 N. Y. Supp. 98; or where the 
suit is for a breach of covenant respecting 
property in which the plaintiff has parted 
with his estate; Wallace v. Vernon, 3 N. B. 
5. Where an officer was charged with brib- 
ery and the opening statement discloses that 
the defendant did not at the time hold the 
office, a verdict of acquittal was properly 
directed; U. S. v. Dietrich, 126 Fed. 676. 
Upon such application all the facts stated 
should be considered without limitation of 
the allegations of the declaration or com- 
plaint, unless any additional facts stated 
would not be admitted in proof under the 



NONSUIT 



2363 



NONSUIT 



pleadings; Roberton v. New York, 7 Misc. 
645, 28 N. T. Supp. 13, affirmed 149 N. T. 
609, 44 N. B. 1128 ; and all inferences prop- 
er to be drawn from the facts stated should 
have full consideration; Carr v. R. Co., 78 
N. J. li., 692, 75 Atl. 928 ; and opportunity 
should be given to amplify the statement if 
it seem too meagre ; Kelly v. Gas Co., 74 
N. J. li. 604, 67 Atl. 21 ; and it must clearly 
appear that there can be no recovery ; Bra- 
shear v. Rabenstein, 71 Kan. 455, 80 Pac. 
950. 

Such motion admits that the statements 
made are true; Roberts v. R. Co., 45 Colo. 
188, 101 Pac. 59; and where a nonsuit was 
granted on the opening statement of counsel 
which did npt appear in the record the ap- 
peal was dismissed ; Johnson v. Spokane, 29 
Wash. 730, 70 Pac. 122 ; but where after the 
opening the complaint was dismissed as not 
stating a legal cause of action, on appeal it 
win be considered as if on demurrer ; Sheri- 
dan V. Jackson, 72 N. Y. 170. In Wisconsin 
such practice is not recognized; Smith v. 
Ins. Co., 49 Wis. 322, 5 N. W. 804. And it is 
not permissible in England ; [1892] 1 Q. B. 
122. In Idaho, under a statute authorizing 
the entry of judgment or nonsuit if the 
proof of the plaintiff's case fails, a nonsuit 
may not be granted on the opening statement 
of his counsel ; Wheeler v. Nav. Co., 16 
Idaho, 375, 102 Pac. 847. A judge has no 
right, without the consent of the plaintiff's 
counsel, to nonsuit the plaintiff upon his 
counsel's opening statement of the, facts. 
The opening of counsel may be incorrect in 
consequence of his having had wrong In- 
structions. Owing to some accident, even if 
the greatest care Is taken, the evidence of 
the witnesses when they are called may dif- 
fer from that which has been opened by 
counsel. It is for that very reason that a 
Uberty is given to the plaintiff's counsel; 
[1892] 1 Q. B. 122. 

A plaintiff has no longer the old common 
law right of allegation to suffer a nonsuit 
at the trial; he cannot at that stage of the 
proceedings discontinue his action without 
leave; [1900] A. C. 19. 

The right of voluntary nonsuit in case of 
counter-claim entitling defendant to affirma- 
tive relief. The common law rule permitting 
the plaintiff to dlmiss his suit and take a 
nonsuit at his pleasure before verdict, ante- 
dated the modern practice of permitting the 
defendant to establish a set-off or counter- 
claim and, under some statutes, to have a 
verdict in his favor if his claim exceeded 
the plaintiff's demand. The effect of modern 
statutes ■ providing for the adjudication of 
counter-claims in the same suit has given 
rise to considerable conflict of decision. 
Probably the nearest approach to certainty 
which is practicable is to state that in the 
majority of cases the determination has been 
that while the plaintiff may take a nonsuit 
as to his own claim he cannot prejudice the 



defendant In the pursuit of his remedy. 
Such was the decision in Bertschy v. Mc- 
Leod, 32 Wis. 205, where the court held that 
the right of discontinuance as at common 
law still remained under the present prac- 
tice and had been rightfully exercised by the 
plaintiff, but that his action did not carry 
with it those proceedings of the defendant 
vrhich he was permitted "to institute in the 
action, or rather to engraft upon it, but 
which are, in substance and effect, actions 
brought by the defendant against the plain- 
tiff." This case was followed by others in 
the same state up to Grignon v. Black, 76 
Wis. 674, 45 N. W. 122, in which a rehear- 
ing was denied In 76 Wis. 686, 45 N. W. 938. 
In another jurisdiction it was held that the 
plaintiff might take a voluntary nonsuit 
without putting out of court the defendant 
who had availed himself of the permission 
of the statute to maintain a counter-claim 
at the trial; Samaha v. Samaha, 18 App. 
D. C. 76 ; and following this case there was 
a statutory provision in the District of Co- 
lumbia that when a plea of set-off has been 
filed, the plaintiff should not discontinue 
without the ' defendant's consent, and that 
without respect to what the defendant might 
do, the plaintiff would be entitled to a trial 
in judgment as to his own claim; and the 
rule of this statute that the defendant must 
consent to a nonsuit was applied in Francis 
V. Edward, 77 N. C. 271 ; but in a later case 
a distinction was drawn between counter- 
claims arising out of the plaintiff's cause of 
action and those which were independent of 
it; and as to the first a voluntary nonsuit 
was not permitted but might be as to the 
latter class of cases though without prej- 
udicing the defendant's right to litigate his 
own claim. Many cases have followed the 
general doctrine of these cases up to Boyle 
V. Stallings, 140 N. C. 524, 53 S. E. 346. In 
many other states the courts have followed 
the same doctrine that the plaintiff may not, 
by a voluntary nonsuit, prejudice the rights 
of the defendant setting up a counter-claim ; 
Griffin V. Jorgenson, 22 Minn. 92; N. W. 
Mut. L. Ins. Co. V. Barbour, 95 Ky. 7, 23 S. 
W. 584; in New York there has been a lack 
of precision and continuity In the decisions 
but they seem to have settled upon a rule 
that the right to dismiss where counter- 
claim has been set up is within the discre- 
tion of the court, legal and not arbitrary, 
and subject to review by the appellate court 
which wiU protect the rights of defendants; 
Carleton v. Darcy, 75 N. Y. 375; Jansen 
V. Whitlock, 58 App. Div. 367, 68 N. Y. Supp. 
1086 ; Livermore v. Bainbridge, 61 Barb. (N. 
Y.) 358, affirmed 49 N. Y. 125. Where a 
referee had found a balance, due to the 
defendant, and the statute of limitations 
would bar an original suit, without discuss- 
ing the general question and under the cir- 
cumstances of the case, a discontinuance 
will not be permitted without the consent of 



NONSUIT 



2364 



KONSUIX 



the defendant; Holcomb v. Holcomb, 23 
Fed, 781. In many cases thfe Contrary View 
is tab4n and it is held that the right of a 
defendant to take .ludgment for a balance 
due him where he has pleaded a set-off does 
not initerfere with the right of the plaintiff 
to take a nonsuit and dismiss his ease at 
any time before verdict uiiless that right is 
expressly denied by the statute; Bufflngton 
V. Quackenboss, 5 Fla. 196; Cummings V. 
Pruden, 11 Mass. 206 ; Theobald v. Colby, 35 
Me. 179; McCredy v. Fey, 7 Watts (Pa.) 
496; Usher v. Sibley, 2 Brev. (S." a) 32; 
Branham v. Brown's Adm'x, 1 Bail. L. (S. 
C.) 262; Huffstutler v. Packing Co., 154 
Ala. 291, 45 South. 418, 129 Ain. St. Rep. 57, 
15. Ij. R. a. (N. S.) 340, and note, where 
the cases are collected. 

In cases of libel. The question of the pow- 
er to grant a nonsuit in such cases has been 
raised in a few cases. In Cox v. Lee, L. R. 
4 Exch. 284, such suits were treated as on 
the same footing as others, and it was held 
that the court should not vnthdraw the ca.se 
from the jury unless satisfied that the pub- 
lication is not libel and that a verdict find- 
ing it such would be set aside. In this coun- 
try where there is a constitutional provision 
relating to libel suits both civil and criminal, 
it has been held that a nonsuit may be grant- 
ed in such a civil action as in other cases; 
Hazy V. Woitke, 23 Colo. 556, 48 Pac. 1048; 
Ukman v. Daily Record Co., 189 Mo. 378, 88 
. S. W. 60. 

Final judgment or not. It appears to be 
the weight of authority that upon the entry 
of a nonsuit there is no jurisdiction to enter 
a final judgment so as to prevent a new 
suit within the period of limitation, the ac- 
tion taken being a mere dismissal of the for- 
mer suit ; Mason v. R. Co., 226 Mo. 212, 125 
S. W. 1128, 26 L. R. A. (N. S.) 914; Davis 
V. Preston, 129 la, 670, 106 N. W. 151 ; Miller 
V. R. Co., 30 Mont. 289, 76 Pac. 691; Kelly 
V. Kelly, 23 Tex. 437; Connor v. Knott, 10 
S. D. 384, 73 N. W. 264; a final judgment 
cannot be entered either for the plaintiff; 
Hamilton v. Barricklow, 96 Ind. 398; or 
against him; Miller v. Mans, 28 Ind. 194; 
Bailey v. Wilson, 34 Or. 186, 55 Pac. 973 
(where new matter had been stricken out 
of the answer, as, it was held, erroneously) ; 
but in Deyo v. R. Co., supra, where the 
plaintiff was nonsuited, judgment was enter- 
ed for defendants and affirmed first at the 
general term and then by the Court of Ap- 
peals. In that case however there was no 
question of the effect upon a statutory privi- 
lege. It has been permitted to attack a 
judgment of nonsuit collaterally for fraud; 
Lowry v. McMillan, 8 Pa. 157, 49 Am. Dec. 
501; contra; Sisco v. Parkhurst, 23 Vt. 
537. 

Reinstatement. An order of reinstatement 
has been made where the nonsuit was grant- 
ed under a mistake of fact, which however 
need not be mutual ; Palace Hardware Co. 



V. Smith, supra, or the order was fraudu- 
lently obtained; Thompson v. Judge, 138' 
Mich. 81, 1,01 N. W. 61 ; or where the statu- 
tory period of limitation has elapsed pending 
suit and the order of dismissal was obtained 
by an attorney after his employment had 
terminated; Stelnkamp v. Gaebel, 1 Neb. 
(Unof.) 480, 95 N. W. 684; but the attor- 
ney's mistake of judgment as to the law, or 
his ignorance of the facts which ought to 
have been known to him, is not a sufficient 
ground for vacating an order; Bacon v. 
Mitchell, 14 N. D. 454, 106 N. W. 129, 4 L. 
R. A. (N. S.) 244. 

The order setting aside a nonsuit rein- 
states the cause and leaves it pending in 
the court making such order notwithstanding 
the entry of another intermediate void or- 
der, transferring the cause to another court ; 
Southern Pac. Co. v. Winton, 27 Tex. Cav. 
App. 508, 66 S. W. 477 ; and the order vacat- 
ing the order of dismissal, unappealed from, 
operates to annul the entry in the clerk's 
record showing dismissal as well as the 
judgment of dismissal ; Wolters v. Bossi, 126 
Cal. 644, 59 Pac. 143. 

The formality of "calling" the plaintiff 
when he is to suffer a nonsuit is obsolete in 
most of the states. 

NORMALLY. As a rule; regularly; ac- 
cording to rule, general custom, etc. Palmer 
V. Mach. Co., 186 Fed. 504. 

NORMAN FRENCH. See Language. 

NOR ROY. See Herald. 

NORTH. In a description In a deed, un- 
less qualified or controlled by other words, 
it means due north. Northerly in a grant, 
where- there is no object to direct its in- 
clination to the east or west, must be con- 
strued to mean north. Brandt v. Ogden, 1 
Johns. (N. Y.) 156; Currier v. Nelson, 96 
Cal. 505, 31 Pac. 531, 746, 31 Am. St. Rep. 
239. 

NORTH CAROLINA. The name of one of 
the original states of the United States of 
America. 

The territory which now forms this state was In- 
cluded In the grant made In 1663 by Charles II., to 
Lord Clarendon and others, of a much more exten- 
sive country. The boundaries were enlarged by a 
new charter granted by the same prince to the 
same proprietaries in the year 1665. By this charter 
the proprietaries were authorized to malce laws, 
with the assent of the freemen of the province or 
their delegates, and they were invested with va- 
rious other powers. Being dissatisfied with the 
form of government, the proprietaries procured the 
celebrated John Locke to draw up a plan of gov- 
ernment for the colony, which was adopted, and 
proved to be impracticable: It was highly excep- 
tionable on account of Its disregard of the principles 
of religious toleration and national liberty, which 
are now universally admitted. After a few years of 
unsuccessful operation it was abandoned. The col- 
ony, had been settled at two points, one called the 
Northern and the other the Southern settlement, 
which were governed by separate legislatures. In 
1729 the proprietaries surrendered their charter, 
when it became a royal province, and was governed 
by a commission and a form of government in sub- 



NORTH GAROilNA 



2365 



NOT GUILTY 



stance slmiU-c to' that established in other royal 
provinces. In 1732 the territory was divided, and 
the divisions assumed the names of North Carolina 
and Sbuth Carolina. 

A constitution was adopted Deoe^her IS, 1776. To 
this constitution amendments^ were made in conven- 
tion June 4, 183B, which were ratified by the people, 
arid took effect on January 1, 1S36. There was a 
second constitution in 1868, and an amended con- 
stitution in 1876. 

NORTH DAKOTA. One of the States of 
the United States. 

By the act of congress of February 22, 1889 (1 
Supp. Rev. Stat. 645), the area comprising the terri- 
tory of Dakota was divided on the line of the 
seventh standard parallel produced due west to the 
western boundary of said territory, and that por- 
tion north of said parallel forms the state of North 
Dakota. The proclamation announcing the admis- 
sion of this state into the Union was made by the 
President on Noveinber 2. 1889. The constitution 
was amended, 1912, providing for Initiative, referen- 
dum and recall. 

NORTHAMPTON TABLES. See LiM! Ta- 
bids. 

NORTHHAMPTON, ASSIZE OF. An as- 
size held ill 1176 ; in it, the king conflrmed 
and perfected the Judicial legislation which 
he had begun ten years before in the Assize 
of Clarendon. The kingdom was divided into 
six circuits, and the judges appointed in 
them were given a more full independence, 
and were no longer joined with the sheriffs 
in their sessions. Their powers were extend- 
ed beyond criminal jurisdiction to questions 
of property, Inheritance, wardship, forfeiture 
of crown lands, advowsons and the tenure 
of land. It provided for a more thorough ad- 
ministration ot criminal law. It provided 
that no one should entertain a guest in his 
house for more^ than a night unless the guest 
had some reasonable excuse which the host 
must show to his neighbors, and when the 
guest leaves, it must be in the presence of 
neighbors and by day. Stephen, Or. Proc. 
in 2 Essays in Anglo-Amer. L. H. 445 ; Mrs. 
J. R. Green in 1 id. 

NORTHWEST TERRITORY. A name for- 
merly applied to the territory northwest of 
ithe Ohio river. See Ohio. 

NORWAY. The most northerly country of 
Europe. It is a limited hereditary monarchy. 
The executive power is vested in a king and 
a ministry, and the legislative in a Storth- 
ing consisting of an upper and a lower house. 

NOSOCOMI. In Civil Law. Persons who 
have the. management and care of hospitals 
for paupers. Clef Lois Rom. mot Adtmnis- 
trateura. 

NOT FOUND. Words indorsed on a bill 
of indictment by a grand jury, when they 
have not sufficient evidence to find a triie 
bill. See Ignoeamus.- 

NOT GUILTY. The general issue plea in 
several sorts of actions and in criminal cases. 
■ In trespass, its form is as follows: "And 
the said C D, by E F, his attorney, comes 
and defends the force and injury, when, etc.-, 



and says that he is not guilty o£ the said 
trespasses above, laid to his charge, or any 
part thereof, in the manner and form as the 
said A B hath above complained. And of 
this the said C D puts himself upon the coun- 
try." 

Under this issue the defendant may give 
in evidence any matter which directly con- 
troverts the truth of any allegation, which 
the plaintiff on such general issue will be 
bound to prove; 1 B. &amp; P. 213; and no person 
is bound to justify who is not prima facie a 
trespasser ; 2 B. &amp; P. 359 ; 2 Saund. 284 d. 
For example, the plea of not guilty is proper 
in trespass to persons, If the defendant have 
committed no assault, battery, or iinprison- 
ment, etc. ; and in trespass to personal prop- 
erty, if the plaintiff had no property In the 
goods, or the defendant were not guilty of 
taking them, etc. ; and in trespass to real 
property, this plea not only puts in issue the 
fact of trespass, etc., but also the title, which, 
whether freehold or possessory In the de- 
fendant or a person under whom he claims, 
may be given in evidence under it, which 
matters show primO, faeie that the right of 
possession, which is necessary in trespass, 
is not in the plaintiff, but in the defendant 
or the person under whom he justifies; 7 
Term 354; Steph. PI. 178; 1 Chitty, PI. 491, 
492. 

In trespass on the case in general the' 
formula is as follows : "And the said C D, 
by B F, his attorney, comes and defends the 
wrong and injury, when, etc., and says that 
he is not guilty of the premises above laid 
to his charge, in manner and form as the 
said A B hath above complained. And of 
this the said C D puts himself upon the 
country." 

This, It will be observed, is a mere tra- 
VeVse, or denial, of the facts alleged in the 
declaration, and therefore, on principle, 
should be applied only to cases in which the 
defence rests on such a denial. But here 
a relaxation has taken place; for, under this 
plea, a defendant is permitted not only to 
contest the truth of the declaration, but, 
with some exceptions, to prove any matter 
of defence that tends to show that the plain- 
tiff has no cause of action, though such mat- 
ters be in confession and avoidance of the 
declaration ; as, for example, a release given, 
or satisfaction made ; Steph.. PI. 182 ; 1 Chit- 
ty, PI. 486. 

In trover. It Is not usual in this action 
to plead any other plea, except the statute 
of limitations; and a release, and the bank- 
ruptcy of the plaintiff, may be given in evi- 
dence under the general issue; 7 Term 391. 

In deit on a judgment suggesting a devas- 
tavit, an executor may plead not guilty ; 1 
Term 462. 

In criminal cases, when the defendant 
wishes to put himself on his trial, he pleads 
not guilty. This plea makes it incumbent 



NOT GUILTY 



2366 NOTARY, NOTARY PUBLIC 



upon the prosecutor to prove every fact and 
circumstance constituting the offence, as 
stated in the indictment, information, or 
complaint. On the other hand, the defend- 
ant may give in evidence under this plea not 
only everything which negatives the allega- 
tions in the indictment, but also all matter 
of excuse and justification. 

See NoN Ctopabilis ; Nibnt Cui-pabi.e. 

NOT POSSESSED. A plea sometimes 
used in actions of trover, when the defend- 
ant was not possessed of the goods at the 
commencement of the action. 3 M. &amp; G. 101, 
103. 

NOT PROVEN. In Scotch Criminal Law. 
It is a peculiarity of the Scotch jury system 
in criminal trials that it admits a verdict of 
not proven, corresponding to the non liquet 
of the Roman law. The legal effect of this 
is equivalent to not guilty; for a prisoner 
in whose case It is pronounced cannot be 
tried again. According to the homely but 
expressive maxim of the law, no man can be 
made to thole an assize twice. But, although 
the verdict of not proven is so far tanta- 
mount to an acquittal that the party cannot 
be tried a second time, it falls very far short 
of it with regard to the effect upon his repu- 
tation. He goes away from the bar of the 
court with an indelible stigma upon his name. 
-There stands recorded against him the opin- 
ion of a jury that the evidence respecting 
his guilt was so strong that they did not 
dare to pronounce a verdict of acquittal. 
When Sir Nicholas Throckmorton was tried 
and acquitted by an English jury in 1554, 
he said, "It is better to be tried than to live 
suspected." But in Scotland a man may be 
not only tried, but acquitted, and yet live 
suspected, owing to the sinister influence of 
a verdict of not proven. Forsyth, Hist. Trial 
by Jury 334. 

NOTARIAL WILL. A will executed by 
the testator in the presence of a Notary Pub- 
lic and two witnesses. 

NOTARIUS. In Civil Law. One who took 
notes or draughts in shorthand of what was 
said by another, or of proceedings in the 
senate or in a court. One who draughted 
written instruments, wills, conveyances, etc. 
Vicat, Coe. Jur.; Calvinus, Lex. 

In English Law. A notary. Law Fr. &amp; 
Lat. Diet; Cowell. 

NOTARY, NOTARY PUBLIC. An officer 
appointed by the executive or other appoint- 
ing power, under the laws of different states. 

Notaries are of ancient origin ; they exist- 
ed in Rome during the republic, and were 
called tabelUones forenses, or persorus puhVi- 
c&lt;B. Their employment consisted in the 
drawing up of legal documents. They exist 
in all the countries of Europe, and as early 
as A. D. 803 were appointed by the Franklsh 
kings and the popes. Notaries In England 
are appointed by the archbishop of Canter- 



bury. 25 Hen. VIII. e. 21, § 4. They are 
officers of the civil and canon law; Brooke, 
Office &amp; Pr. of a Notary 9. In most of the 
states, notarios are appointed by the gov- 
ernor alone, in others by the governor by 
and with the advice of his council, in others 
by and with the advice and consent of the 
senate ; in the District of Columbia they are 
appointed by the President of the United 
States. A notary is a state officer; Com. v. 
Shindle, 19 Pa. Co. Ct. B. 258. As a general 
rule, throughout the United States, the of- 
ficial acts of a notary public must be au- 
thenticated by seal as well as signature; 
Tunis V. Withrow, 10 la. 305, 77 Am. Dec. 
117; Donegan v. Wood, 49 Ala. 242, 20 Am. 
Rep. 275; Stout v. Slattery, 12 111. 162. 

Their duties differ somewhat in the differ- 
ent states, and are prescribed by statute. 
They are generally as follows: to protest 
bills of exchange and draw up acts of honor; 
to authenticate and certify copies of docu- 
ments ; to receive the affidavits of mariners 
and draw up protest relating to the same; 
to attest and take acknowledgments of deeds 
and other instruments; and to administer 
oaths. Ordinarily notaries have no juris- 
diction outside the county or district for 
which they are appointed; but in several 
states they may act throughout the state. 

By act of congress, Sept. 16, 1850, notaries 
are authorized to administer oaths and take 
acknowledgments in all cases where under 
the laws of the United States justices of the 
peace were formerly authorized to act. 

By act of Aug. 15, 1876, c. 304, notaries 
are authorized to take depositions and do 
all other acts in relation to taking testimony 
to be used in the courts of the United Stages, 
and to take acknowledgments and affidavits 
with the same effect as commissioners of 
the United States circuit courts may do. R. 
S. § 1778. They may protest national bank 
circulating notes; R. S. § 5226; take acknowl- 
edgment of assignment of claims upon the 
United States; id. § 3477; and administer 
oaths of allegiance to persons prosecuting 
such claims; id. § 3479. By act of June 22, 
1874, c. 390, notaries may take proof of debts 
against the estate of a bankrupt. By act of 
Feb. 26, 1881, c. 82, reports of national banks 
may be sworn to before notaries, but such 
notary must not be an officer of the bank; 
R. S. § 5211. By act of Aug. 18, 1856, c. 127, 
every secretary of legation and consular offi- 
cer may, within the limits of his legation, 
perform any notarial act; R. S. § 1750. By 
act of April 5, 1906, every consular officer 
is required, within his consulate, to perform 
notarial acts. 

A statute which authorizes a notary puiUo 
to commit for contempt a witness who has 
been duly subpoenaed to testify before him 
and who refuses to be sworn or give his 
deposition, is- unconstitutional ; In re Huron, 



NOTARY, NOTARY PUBLIC 



2367 



NOTARY, NOTARY PUBLIC 



58 Kan. 152, 48 Pac. 574, 36 L. R. A. 822, 
62 Am. St. Rep. 614. 

The acts of notaries are respected by the 
custom of merchants and the law of nations. 
Their protest of a bill is received as evidence 
in the courts of all civilized countries. Ex- 
cept in cases of protest of bills, the signa- 
ture of a notary to an Instrument going to a 
foreign country ought to be authenticated 
by the consul or representative of that coun- 
try. 

The notaries of England have always con- 
sidered themselves authorized to administer 
oaths; and the act of 5 &amp; 6 Will. IV. has 
placed it beyond dispute. In this country 
they do not exercise the power unless au- 
thorized by statute, except in cases where 
the oath is to be used out of the state or in 
the courts of the United States. 

Upon general principle they cannot act in 
cases In which they are Interested; 95 Am. 
Dec. 378, note; Ogden B. &amp; L. Ass'n v. 
Mensch, 196 III. 554, 63 N. E. 1049, 89 Am. 
St. Rep. 330; Hayes v. Loan Ass'n, 124 Ala. 
1.63, 26 South. 527, 82 Am. St. Rep. 216 ; Sam- 
ple V. Irwin, 45 Tex. 567 (an attorney for 
either party). 

The acknowledgment of a deed to a cor- 
poration cannot be taken by a notary who is 
a stockholder and director in the corpora- 
tion; Fugman v. Loan Ass'n, 209 111. 176, 70 
N. E. 644. One incorporator, who is a no- 
tary, cannot take the acknowledgment of 
another incorporator to the articles of in- 
corporation; People V. Board, 105 App. Div. 
273, 93 N. Y. Supp. 584. 

A mortgage should not be acknowledged 
before a notary who is a stockholder and of- 
ficer of the mortgagee; Kothe v. Krag-Reyn- 
olds Co., 20 Ind. -App. 293, 50 N. E. 594; a 
notary who is a stockholder of a corporation 
cannot take a valid acknowledgment of his 
company ; Bexar B. &amp; L. Ass'n v. Heady, 
21 Tex. Civ. App. 154, 50 S. W. 1079, 57 S. 
W. 583 ; nor one who is director, stockholder 
and assistant cashier of a bank; Wilson v. 
Griess, 64 Neb. 792, 90 N. W. 866. A protest 
by a notary who is a stockholder in the bank 
is invalid; Monongahela Bank v. Porter, 2 
Watts (Pa.) 141 ; but where a notary pub- 
lic was intermediary between a borrower 
and lender on mortgage and took the ac- 
knowledgment of the mortgage, his act was 
held valid, there being nothing on the face 
of the papers to indicate to third parties 
that there was any incapacity to act; Jarvis- 
ConkUn Mtg. Trust Co. v. Willhoit, 84 Fed. 
515 ; and some cases hold that the mere fact 
that he is an officer of a corporation does 
not make its acknowledgment before him 
invaUd; Horbach v. Tyrrell, 48 Neb. 514, 67 
N. W. 485, 489, 37 L. R. A. 434; Read v. 
Loan Co., 68 Ohio St. 280, 67 N. B. 729, 62 
L. R. A. 790, 96 Am. St Rep. 663 ; Cooper v. 
Loan Ass'n, 97 Tenn. 285, 37 S. W. 12, 33 
L. R. A. 338, 56 Am. St Rep. 795; Keene 



Guaranty S. Bk. v. Lawrence, 32 Wash. 572, 
73 Pac. 680. 

It is held that a mortgage to a corporation 
is valid although the notary who took the 
acknowledgment was a stockholder; Read 
V. Loan Co., 68 Ohio St 280, 67 N. E. 729, 
62 L. R. A. 790, 96 Am. St Rep. 663; so 
where the president of the mortgagee com- 
pany took an acknowledgment of a mort- 
gage to his company; Keene Guaranty S. 
Bk. V. Lawrence, 32 Wash. 572, 73 Pac. 
680; so, in the case of a chattel mortgage, 
where the notary was a director, treasur- 
er and stockholder of the mortgagee (the 
fact not appearing on the face of the pa- 
pers) ; Ardmore N. Bk. v. Supply Co., 20 
Okl. 427, 94 Pac. 533, 23 L. R. A. (N. S.) 
1074, 129 Am. St Rep. 747, 16 Ann. Cas. 133 ; 
and in the case of a notary who was vice- 
president of the company; Florida S. Bk. &amp; 
R. E. Exch. V. Rivers, 36 Pla. 575, 18 South. 
850. 

The books or registers of a deceased no- 
tary are admissible to prove his official acts 
as to presentment, demand, and notice ot 
non-payment of negotiable paper; Porter v. 
Judson, 1 Gray (Mass.) 175 ; and so are en- 
tries of a notary's clerk ; Gawtry v. Doane, 
51 N. Y. 84. When produced, the handwrit- 
ing of the deceased person must be proved; 
Chaffee v. U. S., 18 Wall. (U. S.) 516, 21 L. 
Ed. 908; but as to what extent a certifi- 
cate shall be conclusive proof of the legality 
of the acknowledgment is not entirely cer- 
tain; but the general tendency is to pro- 
tect one who relies on the certificate; Webb, 
Record Title §§ 87-89, and note in 1 Am. 
Dec. 81. In several states certificate is, by 
statute, prima facie evidence only ; 1 Hill's 
Code (Wash.) Sec. 1436. 

A recorded deed of trust acknowledged be- 
fore a notary disqualified by statute may be 
record notice to a subsequent judgment cred- 
itor; Southwestern Mfg. Co. v. Hughes, 24 
Tex. Civ. App. 637, 60 S. W. 684. 

Where a lawyer who was also a notary 
was in the habit of mailing instruments to 
his clients for signature and then certifying 
his acknowledgment, he was censured by 
the court, but not further punished as he 
acted without improper motive ; In re Barn- 
ard, 151 App. Div. 580, 136 N. Y. Supp. 185. 

Where an action is brought against a 
notary for a false certificate of acknowl- 
edgment, the presumption is that the de- 
fendant, acting in' his judicial capacity, did 
so on reasonable information, and dis- 
charged his full duty. The burden of proof 
is on the plaintiff to prove a clear and in- 
tentional dereliction of duty ; Com. v. 
Haines, 97 Pa. 228, 39 Am. Rep. 805; Proff! 
Notaries, 2d ed. §§ 48, 175 ; Notary's Manual. 
It has been held an actionable libel for a 
notary falsely and maliciously to protest for 
non-payment the acceptance of a person, and 
then send the draft with such protest to 



NOTARY, NOTARY PUBLIC 



2368 



NOTE OR MEMORANDUM 



the source from whence It came; May v. 
Jones, 88 Ga. 308, 14 S. E. 552, IS L. K. A. 
C37, 30 Am. St. Rep. 154. In Bnglaad they 
are appointed by the Archbishop of Canter- 
bury through the master of the Court of 
Faculties. In the city of liondon they must 
have been apprenticed, and also be freemen 
of the Scriveners' Company; Odgers, O. L. 
1446. See [1910] W. N. 228. 
See Authentic Act; Acknovtledgment. 

NOTATION. The act of making a mem- 
orandum of some special circumstance on a 
probate or letters of administriation. 

NOTCHELL, or NOCHELL. "Crying the 
wife's Notchell" seems to have been a means 
of preventing her running up debts against 
her husband. See 20 Law Mag. &amp; Rev. 280. 
In use in Lancashire. Cent. Diet. 

NOTE A BILL. See Noting a Bill. 

NOTE OF A FINE. The fourth step of 
the proceedings in acknowledging a fine, 
vrhich is only an abstract of the writ of 
covenant a,nd the concord, naming the par- 
ties, the parcel of laiid, and thfe agreement, 
and enrolled of record iu the proper office. 
2 SharsW. Bla. Com. 351, App. n. iv. § 3; 1 
Steph. Cord., 11th ed. 542. 

NOTE OF ALLOWANCE. A note deliver- 
ed by a master to a party to a cause, who 
alleged that there was error in law in the 
record and proceedings, allowing him to 
bring error. 

NOTE OF HAND. A popular name for a 
promissory note. 

NOTE OF PROTEST. A note or minute 
of the protest, made by' the notary, at time 
of protest, on the bill, to be completed or 
filled out at his leisure. Byles, Bills, 15th 
ed. 214. 

NOTE OR MEMORANDUM. An informal 
note or abstract of a transaction required 
by the statute of frauds. 

The form of it is immaterial ; but it must 
contain the essential terms of the contract 
expressed with such a degree of certainty 
that it may be understood without refer- 
ence to parol evidence to show intent of 
parties; Browne, Stat, of Fr. 353, 386; 
O'D-onnell v. Leeman, .43 Me. 158, 69 Am. 
Dec. 54; Tallman v. Franklin, 14 N. Y.. 584; 
Johnson v. Brook, 31 Miss. 17, 66 Am. Dec. 
547 ; White v. Watkins, 23 Mo. 423; McCon- 
nell V. Brillhart, 17 111. 354, 65 Am. Dec. 661. 
In some states, and in England, the consid- 
eration need not be stated in the note or 
memorandum; 4 B. &amp; Aid. 595; Violett v. 
Patton, 5 Ora. (U. S.) 142, 3 L. Ed. 61; 
Packard v. Richardson, 17 Mass. 122, 9 Am. 
Dec. 123 ; Sage v. Wilcox, 6 "Conn. 81. 

A memorandum of the terms of an agree- 
ment was signed by plaintiff but not by 
defendant; the latter subsequently wrote 
to plaintifC referring to "our agreement for 
the hire of your carriage," and "my month- 



ly payment." There was no other arrange- 
ment between the parties, to which these 
expressions could refer. Held, that the let- 
ter and the document containing the terms 
of the arrangement together constituted a 
note and memorandum signed by defendant, 
within the statute of frauds; 45 L. T. Rep. 
N. S. 348. See Grafton v. Cummings, 99 U. 
S. 100, 25 I* Ed. 366 ; Bibb v. Allen, 149 U. 
S. 481, 13 Sup. Ct. 950, 37 L. Ed. 819; Lee v. 
Hills,, 66 Ind. 474. 

See Browne; Reed, Stat of Frauds; 
Memorandum. 

NOTES. See Judge's Notes. 

NOTICE. The information given of some 
a,Ct done, or the interpellation by which 
some act is required to be done. Knowl- 
edge. 

A statutory notice Is not binding unless 
given as the \aw directs or allows ; Allen y. 
Strickland, 100 N. C. 225, 6 S. E, 780; O'Fal- 
lon V. R. Co., 45 111. App. 572. 

Actual notice exists when knowledge Is 
actually brought home to the party to be 
affected by it. This statement is, criticised, 
as being too narrow, in Wade, Notice 4. 
This writer divides actual knowledge into 
two classes, express and implied; the for- 
mer includes all knowledge of a degree 
above that which depends upon collateral 
inference, or which imposes upon the party 
the further duty of inquiry; the latter 
imputes knowledge to the party because he 
is shown to be conscious of having the 
means of ' knowledge, though he does not 
use them, choosing to remain ignorant of 
the fact, or is grossly negligent in not fol- 
lowing up the inquiry which the known 
facts suggest; Wade, Notice 5. In Appeal of 
Craft, 42 Conn. 146, there is a division into 
"particular or explicit" and "general or im- 
plied" notice. Information which. a prudent 
man believes to be true, and which if follow- 
ed by inquiry must lead to knowledge, is 
equivalent to knowledge;' Tucker v. Con- 
stable, 16 Or. 407, 19 Pac. 13. Where the di- 
rect issue of fraud is involved, knowledge 
may be imputed to one wilfully closing his 
eyes to information within his reach; Weck- 
er V. Enameling Co., 204 U. S. 176, 27 Sup. 
Ct 184, 51 L. Ed. 430, 9 Ann. Cas. 757. 

Notice of any fact which is sufiicient to 
put a purchaser of land on inquiry, is ade- 
quate notice ; Rorer Iron Co. v. Trout, 83 
Va. 397, 2 S. E. 713, 5 Am. St Rep. 285 ; and 
of everything to which such inquiry may 
lead; Shauer v. Alterton, 151 U. S. 607, 14 
Sup. Ct. 442, 38 L. Ed. 286. 

Constrttvtive notice exists when the party, 
by any circumstance whatever, is put upon 
inquiry (-which is the same as implied no- 
tice, supra), or when certain acts have been 
done which the party interested is pre- 
sumed to have knowledge of on grounds of 
public policy; Bates v. Norcross, 14 Pick. 
(Mass.) 224; Pritchard v. Brown, 4 N. H. 



NOTICE 



2369 



NOTICE 



397, 17. Am. Dec. 431 ; Scott v. Gallagher, 14 
S. &amp; R. (Pa.) 333, 16 Am. Dec. 508. The 
recording a deed; Wise v: Wimer, 23 Mo. 
237; Magoffin v. MandavlUe, 28 Miss. 354; 
4 Kent 182, n. ; an advertisement in a news- 
paper, when authorized by statute as a part 
of the process, public acts of government, 
and lis pendens (but see Lis Pendens), con- 
stitute constructive notice. Judge Story de- 
fines the term as "knowledge" imputed by 
the court on presumption, too strong to be 
rebutted, that the information must have 
been communicated ; Story, Eq. Jur. § 399. 
"Constructive- notice is a legal inference of 
notice, of so high a nature, as to be conclu- 
sive, unless disproved, and is in most cases 
insusceptible of explanation or rebuttal by 
evidence that the purchaser had no actual 
notice, and believed the vendor's title to be 
good;" 2 Lead. Cas. Bq. 77. Constructive 
notice Is sometimes called notice in law; 
Sterry v. Arden, 1 Johns. Ch. (N. Y.) 261. 
Proof of notoriety of the fact in the neigh- 
borhood of the party to be affected is com- 
petent to prove notice; Wright v. Stewart, 
130 Fed. 905.- 

To establish notice by telephone, the par- 
ty relying upon such notice has the burden 
of proving the identity of the person receiv- 
ing the communication and that it reached 
the party sought to be charged; Second Pool 
Coal Co. V. Coal Co., 188 Fed. 892, 110 C. C. 
A. 526. 

Proof that an envelope was mailed and 
received is not conclusive evidence that the 
notice was' enclosed, and if its receipt is de- 
nied, it is for the jury; Empire State Surety 
Co. V. Lumber Co., 200 Fed. '224, 118 C. C. A. 
410.' 

The constructive notice given by the rec- 
ord of a deed is sometimes called record no- 
tice. Where an instrument affecting the ti- 
tle to real estate is properly recorded, the 
record thereof is notice to subsequent pur- 
chasers, etc., from the same grantor; Wade, 
Notice, 2d ed. § 97; Vaughan v. Greer, 38 
Tex. 530 ; Mayo v. Cartwright, 30 Ark. 407 ; 
Randolph v. R. Co., 28 N. J. Eq. 49. 

The possession of land is notice to all the 
world of the possessor's rights thereunder; 
Lipp V. Land Syndicate, 24 Neb. 692, 40 N. 
W. 129; Buck v. Holt, 74 la. 294, 37 N. W. 
377 ; Brooke v. Bordner, 125 Pa. 470, 17 Atl. 
467; Daniel v. Hester, 29 S. C. 147, 7 S. E. 
65; Simmons Creek Coal Co. v. Doran, 142 
U. S. 417, 12 Sup. Cf239, 35 L. Ed. 1063. 

Notice to an agent in the same transac- 
tion is, in general, notice to the principal; 
Farmers &amp; C. Bk. v. Payne, 25 Conn. 444, 
68 Am. Dec. 362; Pritchett v. Sessions, 10 
Rich (S. C.) 293; Baker v. Bliss, 39 N. Y. 
70; Armstrong v. Abbott, 11 Colo. 223, 17 
Pac. 517. A principal imposing confidence in 
an agent, and therefore neglecting some 
source of knowledge which he might have 
sought, is not chargeable with what he might 
have found out upon inquiry aroused by 
Bouv.— 149 



suspicion; Kllboum v. Sunderland, 130 TJ. 
S. 505, 9 Sup. Ct. 594, 32 L. Ed. 1005. No- 
tice to the trustees is notice to the beneficia- 
ries in a deed of trust; Peters v. Bain, 133 
U. S. 670, 10 Sup. Ct. 354, 33 L. Ed. 696; 
OruwUsh v. R. Co., 32 W. Va. 244, 9 S. E. 

18;0. 

A principal is not bound by his agent's 
knowledge where it is not the duty of the 
agent to communicate it ; Hummel v. Bank, 
75 la. 689, 37 N. W. 954. Notice to an agent 
must be on the very business on hand; Al- 
ger V. Keith, 105 Fed. 105, 44 C. C. A. 371. 
So of knowledge incidentally acquired by a 
corporate officer when not acting in his offi- 
cial, capacity; Caffee v. Berkley, 141 la.' 344, 
118 N. W. 267. If the agent is acting ad- 
versely to the principal his knowledge is not 
imputed to the principal; Central C. &amp; C. 
Co. V. Good &amp; Co., 120 Fed. 793, 57 C. C. A. 
161 ; Gunster v. Power Co., 181 Pa. 327, 37 
Atl. 550, 59 Am. St. Rep. 650. Where it is 
in the private ■ interest of the officer of a 
bank to conceal knowledge from his bank, 
the law does not, by a fiction, charge the 
bank with such knowledge; American N. 
Bk. V. Miller, 229 U. S. 517, 33 Sup. Ct. 883, 
57 L. Ed. 1310. 

Notice to the president and some directors 
of a corporation is sufficient to bind it ; Paul 
S. S. Co. v.- Paul, 129 Fed. 757 ; but where 
the president, acting in his private capacity, 
acquires knowledge of a particular fact, it 
does not affect the corporation in a later 
transaction unless he participated therein ; 
Smith V. Carmack (Tenn.) 64 S. W. 372; 
Teagarden v. Lumber Co., 105 Tex. 616, 154 
S. W. 973. Notice to one who acts as local 
representative, advisor, secretary and treas- 
urer, is notice to his association ; Dennis v. 
Loan Ass'n, 136 Fed. 539, 69 C. C. A. 315; 
but where one is secretary of two companies, 
it must be shown that when notice was given 
to him, it was his duty to communicate it to 
the proper company, even though he was act- - 
ing at the time for the other company; 
[1902] 1 Ch. 507. 

The giving notice in certain cases is in 
the nature of a condition precedent to the 
right to call on the other party for the per- 
formance of his engagement, whether his 
contract were express or Implied. Thus, 
in the familiar instance of bills of exchange 
and promissory notes, the implied contract 
of an indorser is that he will pay the bill or 
note, provided it be not paid, on presentment 
at maturity, by the acceptor or maker (be- 
ing the party primarily liable), and provided 
that he (the indorser) . has due notice of the 
dishonor, and without which he is dis- 
charged from all liability : consequently, it 
is essential for the holder to be prepared to 
prove affirmatively that mch notice was giv- 
en, or some facts dispensing with such no- 
tice; 1 Chitty, Pr. 496; 1 Pars. Notes &amp; B. 
516. 



NOTICE 



2370 



NOTICE OF DISHONOR 



Whenever the defendant's liability to per- 
form an act depends on another occurrence 
which is hest known to the plaintiff, and of 
which the defendant is not legally bound to 
take notice, the plaintiff must prove that 
due notice was in fact given. So, in cases 
of insurances on ships, a notice of abandon- 
ment is frequently necessary to enable the 
assured plaintiff to proceed as for a total 
loss when something remains to be saved, in 
telation to which, upon notice, the insurers 
might themselves take their own measures. 

Notice may be written or oral, in many 
cases, at the option of the party required to 
give it ; but written notice is generally, pref- 
erable, both as avoiding doubt and ambigui- 
ty in its terms, and as admitting more easy 
and exact proof of delivery; 2 Dan. Neg. 
Inst. 972. 

Immediate notice of a fire means reason- 
able notice ; Solomon v. Ins. Co., 160 N. Y. 
595, 55 N. E. 279, 46 L. R.* A. 682, 73 Am. St 
Rep. 707. 

Acknowledging service of notice does not 
preclude showing it was too late ; Shearouse 
V. Morgan, 111 Ga. 858, 36 S. E. 927. 

Personal service does not include service 
at the last known residence ; Dalton v. R. 
Co., 118 Mo. App. 71, 87 S. W. 610. 

See Knowledge; Rbcobd. 

NOTICE, AVERMENT OF. The state- 
ment in a pleading that notice has been 
given. 

When the matter alleged in the pleading 
is to be considered as lying more properly 
in the knowledge of the plaintiff than of 
the defendant, then the declaration ought 
to state that the defendant had notice there- 
of; as, when the defendant promised to give 
the plaintiff as much for a commodity as 
another person had given or should give for 
the like. 

But where the matter does not lie more 
properly in the knowledge of the plaintiff 
than of the defendant, notice need not be 
averred; 1 Saund. 117, n. 2; 2 id. 62 a, n. 
4. Therefore,, if the defendant contracted 
to do a thing on the performance of an act 
by a stranger, notice need not be averred; 
for It lies in the defendant's knowledge as 
much as the plaintiff's, and he ought to take 
notice of it at his peril; Gom. Dig. Pleader 
(C 65). See Com. Dig. Pleader (C 73, 74, 
75) ; Viner, Abr. Notice; Hardr. 42 ; 5 Term 
621. 

The omission of an averment of notice, 
when necessary, will be fatal on demurrer 
or judgment by default; Cro. Jac. 432; but 
may be aided by verdict; 1 Saund. 228 a; 
unless in an action against the drawer of a 
bill, when the omission of the averment of 
notice of non-payment by the acceptor is 
fatal, even after verdict; Dougl. 679. 

NOTICE OF DISHONOR. A notice given 
to a drawer or indorser of a bill, or an in- 
dorser of a negotiable note, by a subsequent 



party, that it. had been dishonored either by 
non-acceptance in the case of a bill, or by 
non-payment In the case of an accepted bill 
or a note. 

The subject is provided for in almost all 
the states by tfie Uniform Negotiable Instru- 
ments Act (see Negotiable Instbtjments); the 
old cases are, however, retained as having 
at least historical interest. 

Notice of dishonor by non-acceptance or 
non-payment must be given to. the drawer 
and to each indorser, and any drawer or 
indorser to whom notice is not given is dis- 
charged; Neg. Instr. Act. 

The notice must contain a description of 
the bill or note; Housatonic Bk. v. Laflin, 5 
Cush. (Mass.) 546: Kilgore v. Bulkley, 14 
Conn. 362; Spann v. Baltzell, 1 Fla. 301, 46 
Am. Dec. 346; Brewster v. Arnold, 1 Wis. 
264 ; sufficient to leave no doubt in the mind 
of the indorser, as a reasonable man, what 
note was intended; Gilbert v. Dennis, 3 
Mete. (Mass.) 495, 38 Am. Dec. 329; Craw- 
ford V. Bank, 7 Ala. 205 ; Youngs v. Lee, 13 
N. Y. 551; Bradley v. Davis, 26 Me. 45; 
Mills V. Bank, 11 Wheat. (U. S.) 431, 6 L. 
Ed. 512; Dodson v. Taylor, 56 N. J. L. 11, 
28 Atl. 316. 

It must also contain a clear statement of 
the dishonor of the bill ; 2 CI. &amp; F. 93 ; 2 M. 
&lt;K W. 799; Gilbert v; Dennis, 3 Mete. (Mass.) 
495, 38 Am. Dec. 329 ; Lockwood v. Crawford, 
18 Conn. 861 ; and something more than the 
mere fact of non-acceptance or non-payment 
must be stated; 2 Q. B. 388; Mills v. Bank, 
11 Wheat. (U. S.) 431, 6 L. Ed. 512; Boehme 
V. Carr, 3 Md. 202 ; Nailor v. Bowie, id. 251 ; 
Chewning v. Gatewood, 5 How. (Miss.) 552; 
except in some cases ; Housatonic Bk. v. 
Laflin, 5 Cush. (Mass.) 546; Graham v. 
Sangston, 1 Md. 59; Hunter v. Van Bom- 
horst &amp; Co., id. 504; see as to effect of the 
use of the word protested. Mills v. Bank, 11 
Wheat. (U. S.) 431, 6 L. Ed. 512; Crawford 
V. Bank, 7 Ala. 205; Kilgore v. Bulkley, 14 
Conn. 362; Housatonic Bk. v. Laflin, 5 Cush. 
(Mass.) 546. 

As to whether there must be a statement 
that the party to whom the notice is sent 
is looked to for payment, see 11 M. &amp; W. 
372; 7 C. B. 400. 

Notice "may be given in any terms which 
sufficiently identify the instrument" and in- 
dicate that it has been dishonored; a mis- 
description does not vitiate the notice unless 
the party has been misled thereby; Neg. 
Instr. Act. 

The notice is generally in writing, but 
may be oral; Woodin v. Foster, 16 Barb. (N. 
Y.) 146; Gilbert v. Dennis, 3 Mete. (Mass.) 
495, 38 Am. Dec. 329; Glasgow v. Pratte, 8 
Mo. 336, 40 Am. Dec. 142 ; 8 C. &amp; P. 355. So • 
in the Neg. Instr. Act 

It need not be personally served, but may 
be sent by mail; 7 East 385; Bussard v. 
Levering, 6 Wheat (U. S.) 102, 5 L. Ed. 215; 



NOTICE OP DISHONOR 



2371 



NOTICE OF DISHONOR 



Commercial Bk. v. Strong, 28 Vt. 316, 67 
Am. Dec. 714 ; Walters v. Brown, 15 Md. 285, 
74 Am. Dec. 566; otherwise, perhaps, if the 
parties live in the same town ; see Peirce v. 
Pendar, 5 Mete. (Mass.). 352; Ireland v. 
Kip, 10 Johns. (N. T.) 490; Manchester Bk. 
V. Fellows, 28 N. H. 302 ; Remington v. Har- 
rington, 8 Ohio 507 ; Brown v. Bank, 85 ya. 
95, 7 S. E. 357 ; or left in the care of a sftita- 
ble person, representing the party to be noti- 
fied; Miles V. Hall, 12 Smedes &amp; M. (Miss.) 
332; Cook v. Renick, 19 111. 598; Isbell v. 
Liewis, 98 Ala. 550, 13 South, 335. 

It may be sent through the mails or de- 
livered in person; it may be left with the 
party's agent. If he is dead, the notice 
should be given to a personal representative, 
and if there is none, it should be sent to the 
last residence or place of business of the de- 
ceased. Notice to one partner is sufficient, 
even though there has been a dissolution. 
Notice to joint parties must be given to each 
of them. Notice to a bankrupt can either 
be given to the bankrupt himself or to his 
trustees or assignees ; Neg. Instr. Act. 

It should be sent to the place where it will 
most probably find ^he party to be notified 
most promptly; Bank of Columbia v. Law- 
rence, 1 Pet. (U. S.) 578, 7 L. Ed. 269 ; wheth- 
er the place of business; Hyslop v. Jones, 

3 McLean 96, Fed. Cas. No. 6,990 ; Ireland v. 
Kip, 11 Johns. (N. Y.) 231 ; Green v. Darling, 
15 Me. 139; 1 Maule &amp; S. 545; or place of 
residence; Commercial Bk.v. Strong, 28 Vt. 
316, 67 Am. Dec. 714. 

The word residence in the law of negotia- 
ble instruments may be satisfied by a tempo- 
rary, partial, or even constructive residence ; 
Wachusett N. Bk. v. Pairbrother, 148 Mass. 
181, 19 N. E. 345, 12 Am. St. Rep. 530. When 
sent by mail, it should be to the post-office 
to which the party usually resorts; Bank of 
U. S. V. Carneal, 2 Pet. (U. S.) 543, 7 L. Ed. 
513; Sherman v. Clark, 3 McLean 91, Fed. 
Cas. No. 12,763 ; Farmers' &amp; M. Bk. v. Battle, 

4 Humphr. (Tenn.) 86; Glasscock v. Bank, 
8 Mo. 443 ; Bank of Columbia v. Magruder's 
Adm'x, 6 H. &amp; J. (Md.) 172, 14 Am. Dec. 
271 ; Webber v. Gotthold, 8 Misc. 503, 28 N.' 
Y. Supp. 763. If properly addressed and 
mailed it will charge the indorser, .whether 
he has received it or not ; Townsend v. Auld, 
8 Misc. 516, 28 N. Y. Supp. 746. 

It should be sent to the address given by 
the party after his signature, or if no such 
address is given then to the post-office near- 
est his place of residence, or where he is 
accustomed to receive his letters. If notice 
is actually received within the time speci- 
fied. It will be sufficient, although not sent 
in accordance with the requirements of the 
act; Neg. Instr. Act 

Every person who, by and immediately 
upon the dishonor of the note or bill, and 
only upon such dishonor, becomes liable to 
an action either on the paper or on the con- 



sideration for which the paper was given, is 
entitled to immediate jiotice ; 1 Pars. Notes 
&amp; B. 499. The holder need give notice only 
to the parties and to the indorser whom he 
intends to hold liable; Baker v. Morris, 25 
Barb. (N. Y.) 138 ; Carter v. Bradley, 19 Me. 
62, 36 Am. Dec. 735 ; Bank v. Bank, 49 Ohio 
St. 351, 30 N. E. 958; Wood v. Callaghan, 

61 Mich. 402, 28 N. W. 162, 1 Am. St. Rep. 
597. A second indorser duly notified cannot 
defend on the ground that the first was not 
so notified ; Boteler v. Dexter, 20 D. C. 26 ; 
notice of dishonor must be given to the' 
drawei: and to each indorser, and any draw- 
er or Indorser to whom such notice is not 
given is discharged; Neg. Instr. Act. 

Notice may be given by any party to a 
note &lt;5r bill not primarily liable thereon as 
regards third parties, and not discharged 
from liability on it at the time notice is 
given; Baker v. Morris, 25 Barb. (N. Y.) 
138; Brailsford v. Williams, 15 Md. 150, 74 
Am. Dec. 559 ; Stanton v. Blossom, 14 Mass. . 
116, 7 Am. Dec. 198 ; 15 M. &amp; W. 231. The 
English doctrine that any party to a note 
or bill may give the notice by which an ante- 
cedent party may be held liable to subse- 
quent parties, is now quite firmly establish- 
ed ; Wade, Notice § 709. Such notice may be 
by the holder's agent; Harris v. Robinson, 
4 How. (U. S.) 336, 11 L. Ed. 1000; Payne 
V. Patrick, 21 Tex. 680 ; 15 M. &amp; W. 231 ; and 
in the agent's name; Drexler v. McGlynn, 
99 Cal. 143, 33 Pac. 773; may be by an indor- 
see for collection; Cowperthwaite v. Shef- 
field, 3 N. Y. 243; a notary; Burke v. Mc- 
Kay, 2 How. (U. S.) 66, 11 L. Ed. 181; 
Renick v. Robbins, 28 Mo. 339; the ad- 
ministrator or executor of a deceased per- 
son ; Story, Pr. Notes § 304 ; the holder of the 
paper as collateral security; 14 C. B. N. S. 
728. It has been held that notice . by a 
stranger, pretending to be the holder, may be 
ratified by the real holder; 2 C. &amp; K. 1016. 

Mere knowledge on the part of an indorser 
of a note, learned from the maker that it 
had been dishonored, is not a notice, since 
notice must come from a party who is enti- 
tled to look to the indorser for payment; 
Jagger v. Bank, 53 Minn. 386, 55 N. W. 545 ; 
notice may be given by or on behalf of the 
holder, on by or on behalf of any party to the 
instrument who might be compelled to pay 
it to the holder. It may be given by an 
agent of such parties, and an ■ agent, wno 
holds the instrument for another, may give 
notice to the parties liable or notify his 
principal; Neg. Instr. Act 

The notice must be forwarded as early as 
the day after the dishonor, by a mall which 
does not start at an unreasonably early 
hour ; Chick v. Pillsbury, 24 Me. 458, 41 Am. 
Dec. 394 ; Stephenson v. Dickson, 24 Pa. 148, 

62 Am. Dec. 369 ; Downs v. Bank, 1 Smedes 
&amp; M. (Miss.) 261, 40 Am. Dec. 92; Deminds 
V. Kirkman, 1 Smedes &amp; M. (Miss.) 644;' 



NOTICE OF DISHONOR 



2372 



NOTICE OP DISHONOR 



Sevepth Ward Bk. v. Hanrick, 2 Sto. 416, 
Fed. Cas. No. 12,678. 

Notice must be given before the close of 
business hours on the day following dis- 
honor. If given at the residence, it must 
be given before the usual hours of rest on 
the day following. If sent by mail, it must 
be deposited in the post-office in time to ar- 
rive in the usual course on the following 
day. Neg. Instr. Act. 

An indorser is entitled to notice of de- 
mand and non-payment of a note, notwith- 
• standing he has collateral security ; Whittier 
V. ColUns, 15 R. I. 44, 23 Atl. 39; Kramer v. 
Sandford, 4 W. &amp; S. (Pa.) 328, 39 Am. Dec. 92. 

Notice of dishonor may be excused : where 
it is prevented by inevitable accident, or 
overwhelming calamity ; by the prevalence of 
a malignant disease which suspends the 
operations of trade; by war, blockade, in- 
vasion, or occupation by the enemy ; by the 
interdiction of commerce between the coun- 
tries from which or to which the notice is 
to be sent ; by the impracticability of giving 
notice, by reason of the party entitled there- 
to to having absconded or having no fixed 
place of residence, or his place of business 
or residence being unknown, and incapable 
of being ascertained upon reasonable inqui- 
ries. These are the excuses of a general 
nature given by Story, on Pr. Notes and on 
Bills. 

Delay in giving notice of dishonor is ex- 
cused when caused by circumstances beyond 
the control of the holder and not due to his 
negligence or misconduct, jand it must be giv- 
en with reasonable diligence when the cause 
of delay ceases to operate; Neg. Instr. Act. 

Special excuses are: That the note was 
for the accommodation of the indorser only; 
an original'agreement on the part of the in- 
dorser, made \nitix the maker or other party 
at all events to pay the note at maturity; 
the receiving security or indemnity from 
the maker, or other party for whose benefit 
the note is made, by the indorser, or money 
to fake it up with ; receiving the note as col- 
lateral security for another debt where the 
debtor is no party to the note, or if a party 
has not indorsed it; an original agreement 
by the indorser to dispense with notice; an 
order or direction from the makee to the 
maker not to pay the note at maturity. See 
Story, Pr. JSfotes §§ 293, 357. 

Notice " of- dishonor is not required to be 
given to the drawer when the drawer and 
drawee are the same person, or when "the 
drawee is a fictitious person, or when the 
drawer is the person to whom the instrument 
is presented for payment, or where the draw- 
er has the right to expect that the drawee 
or acceptor will honor the instrument, or 
where tbe drawer has countermanded pay- 
ment; Neg. Instr. Act. 

Notice of dishonor need not be given to an 
indorser where the drawee is a fictitious 



person and the indorser knows of the fact 
at the time he indorsed, or where the in- 
dorser is the person to whom the instrument 
is presented for payment, or where the in- 
strument was made or accepted for his ac- 
commodation; Neg. Instr. Act. 

NOTICE OF EXECUTION. Under an ex- 
emption act which requires an execution, the 
debtor desiring to avail himself of its bene- 
fits should make a schedule of all his per- 
sonal property within ten days after notice 
of execution. The sherifiE should, whenever 
practical, give personal notice, and an am- 
biguously worded notice by mail from which 
the debtor may infer that personal demand 
will be made on him at some time in the 
future is insufficient; Boggess v. Pennell, 46 
111. App. 150. 

NOTICE OF INQUIRY. The plaintiff 
must give a written notice of executing a 
writ of inquiry to the defendant or his solicit- 
or ; 2 Chit. Arch. Prac. ; Wharton. 

NOTICE OF JUDGMENT. In several of 
the states it is provided by statute that a 
written notice shall be served by the party 
entering the judgment upon his adversary 
or his attorney, stating the time when the 
judgment is entered. 

NOTICE OF LIS PENDENS. A notice 
filed for the purpose of warning all persons 
that the title to certain property Is in liti- 
gation. See Lis Pendens. 

NOTICE OF MOTION. A notice in writ- 
ing, entitled in a cause, stating that, on a 
certain day designated, a motion will be 
made to the court for the purpose stated. 
Burrill. 

NOTICE OF PROTEST. A notice given 
to a drawer or indorser of a bill, or to an 
indorser of a note, that €he bill or note has 
been protested for refusal of payment or ac- 
ceptance. See Notice of Dishonor. 

NOTICE OF TRIAL. The plaintiff under 
the practice of some states may give notice 
of trial at any time after the issues of fact 
are ready for trial; and if not given within 
a certain time the defendant may give no- 
tice of same or move to dismiss the action 
for want of prosecution. 

NOTICE TO ADMIT. In the practice of 
the English high court either party may call 
upon the other to admit a document, and on 
refusal or neglect to admit he must bear 
the costs of proving the document, unless 
the judge certifies that the refusal was rea- 
sonable. Rules of Court XXXII ; Whart. 

NOTICE TO PLEAD. Written notice to 
defendant, requiring him to plead within a 
certain time. It must always be given before 
plaintiff can sign judgment for want of a 
plea. 1 Chitty, Archb. Pr. 221. Notice to 
plead, indorsed on the declaration or deliver- 
ed separately, is sufficient without demand- 



NOTICE TO PliEAD 



2373 



NOTICE TO QUIT 



ing plea or rule to plead, In England, by. 
statute. 

NOTICE TO PRODUCE PAPERS. When 
it is Intended to give secondary evidence of 
a written instrument or paper which is la 
the possession of the opposite party, it is, in 
general, requisite to give him notice to pro- 
duce the same on the trial of the cause, be- 
fore such secondary evidence can be admit- 
ted. See Roberts v. Dixon, 50 Kan. 436, 31 
Pac. 1083. 

To this general rule there are some excep- 
tions: first, in cases where, fromfthe nature 
of the proceedings, the party In possession 
of the Instrument has notice that he Is 
charged With the possession of it, as In the 
case of trover for a bond. McClean v. Hert- 
zog, 6 S. &amp; R. (Pa.) 154; 1 Campb. 148; State 
V. Mayberry, 48 Me. 218 ; Forward v. Harris, 
30 Barb. (N. Y.) 338; Morrill v. R. R., 58 
N. H. 68; second, where the party in pos- 
session has obtained the ii^trument by 
fraud ; 4 Esp. 256. 

In general, a notice to produce papers 
ought to be given in writing, and state the 
title of the cause in which it is proposed to 
use the papers or instruments required; 2 
Stark. 19. It seems, however, that the no- 
tice may be by parol ; 1 Campb. 440. It must 
describe with sufficient certainty the papers 
-or instruments called for, and must not be 
too general and by that means be uncertain ; 
Ry. &amp; M. 341 ; M'Cl. &amp; Y. 139. 

The notice may be given to the party him- 
self, or to his attorney; 2 Term 203, n. ; 3 id. 
306; Ry. &amp; M. 327. 

The notice must be served a reasonable 
time before trial, so as to afCord an oppor- 
tunity to the party to search for and pro- 
duce the instrument or paper in question; 
1 Stark. 283 ; Pitt v. Emmons, 92 Mich. 542, 
52 N. W. 1004; Burlington Lumber Co. v. 
Min. Co., 66 la. 292, 23 N. W. 674. 

When a notice to produce an instrument 
or paper in the cause has been proved, and 
it is also proved that such paper or instru- 
ment was, at the time of the notice, in the 
hands of the party dr his privy, and upon 
request in court he refuses or neglects to 
produce it, the party having "given such no- 
tice and made such proof will be entitled to 
give secondary evidence thereof. See Mo- 
meyer v. Wool Co., 66 Hun 626, 20 N. Y. 
Supp. 814; Morse v. Woodworth, 155 Mass. 
233, 27 N; E. 1010, 29 N. E. 525. 

Where a party is notified to produce cer- 
tain writings, and the same are shown not 
to be within the state, copies may be intro- 
duced; Danforth v. B. Co., 99 Ala. 331, 13 
South. 51; Smith v. Bank,, 82 Tex. 368, 17 
S. W. 779. See Production of Books. 

NOTICE TO QUIT. A request from a 
landlord to his tenant to quit the premises 
leased, and to give possession of the same 
to him, the landlord, at a time therein men- 
tioned. Jackson v. French, 3 Wend. (N. Y.) 



337, 20 Am. Dec. 699; Den v. Adams, 12 N. 
J. L. 99. 

The form of the notice. The notice or de- 
mand of possession should contain a request 
from the landlord to the tenant or person 
in possession to quit the premises which he 
holds from the landlord (which premises 
ought to be particularly described, as being 
situate In the street and city or place, or 
township and county), and to deliver them 
to him on or before a day certain,— gener- 
ally, when the lease is for a year, the same 
day ot the year on which the lease com- 
mences. But where there is some doubt as 
to the time when the lease is to expire, it is 
proper to add, "or at the expiration of the 
current year of your tenancy." 2 Esp. 589. 
It should be dated, signed by the landlord 
himself, or by some person in his name, 
who has been authorized by him, and di- 
rected to the tenant. The notice must in- 
clude all the premises under the same de- 
mise; for the landlord cannot determine 
the tenancy as to part of the premises de- 
mised and continue it as to the residue. 
For the purpose of bringing an ejectment, 
it is not necessary that the notice should 
be in writing, except when required to be 
so under an express agreement between the 
parties; Com. Dig. Estate ty Grant (G 11, 
n. p.); 2 Campb. 96. But it is the general 
and safest practice to give written notices; 
and it is a precaution which should always, 
when possible, be observed, as it prevents 
mistakes and renders the evidence certain. 
Care should be taken that the words of a 
notice be clear and decisive, without am- 
biguity or giving an alternative to the ten- 
ant ; for if it be really ambiguous or option- 
al, it will be invalid ; Ad. Ej. 204. 

As to tiie person hy whom the notice is to 
6e given. It must be given by the person 
interested In the premises, or his agent prop- 
erly appointed; Ad. Ej. 120. See 3 C. B. 
215. As the tenant is to act upon the notice 
at the time it is given to him, it is necessary 
that it should be such as he may act upon 
with security, and should, therefore, be 
binding upon all the- parties concerned at the 
time it is given. Where, therefore, several 
persons are jointly interested in the prem- 
ises, they ■ need not all join in the notice ; 
but, if any of them be not a party at the 
time, no subsequent ratification by him will 
be sufiicient by relation to render the notice 
valid. But see 1 B. &amp; Ad. 135 ; 7 M. &amp; W. 
139. But if the notice be given by an agent, 
it is sufficient if his authority is afterwards 
recognized; 3 B. &amp; Aid. 689. But see 10 
B. &amp; C. 621. 

As to the person to whom the notice 
should 6e given. When ■ the relation of 
landlord and tenant subsists, difficulties can 
seldom occur as to the party upon whom 
the notice should be served. It should In- 
variably be given to the tenant of the party 
serving the notice, notwithstanding a part 



NOTICE TO QUIT 



2374 



NOTICE TO QUIT 



may have been underlet or tbe whole of the 
premises may have been assigned; Ad. Ej. 
119; 5 B. &amp; P. 330; 6 B. &amp; C. 41; unless, 
perhaps, the lessor has recognized the sub- 
tenant as his tenant; Jackson v. Baker, 10 
Johns. (N. Y.) 270. When the premises are 
in possession of two or more as joint ten- 
ants or tenants in common, the notice should 
be to all. A notice addressed to all and 
served upon one only will, however, be a 
good notice ; Ad. Ej. 128. The delivery of a 
notice to quit to the vnfe of a tenant, she 
being in possession of the premise^, is a 
good service upon the husband; Bell v. 
Bruhn, 30 111. App. 300. 

As to the mode of serving the notice. The 
person about serving the notice should 
make two copies of it, both signed by the 
proper person, then, procure one or more 
respectable persons for witnesses, to whom 
he should show the copies, who, upon com- 
paring them and finding them alike, are to 
go with the person who is to serve the no- 
tice. The person serving the notice then, 
in their presence, should deliver one of 
these copies to the tenant personally, or to 
one of his family, at his usual place of 
abode, although the same be not upon the 
derpised premises; 2 Phill., Ev. 185; or 
serve it upon the person in possession; and 
where the tepant is not in possession, a 
copy may be served on him, if he can be 
found, and another on the person in pos- 
session. The witnesses should then, for 
the sake of security, sign their names on 
the back of the copy of the notice retained, 
or otherwise mark it so as to identify it; 
and they should also state the manner in 
which the , notice was served. In the case 
of a joint demise to two defendants, of 
whom one alone resided upon the premises, 
proof of the service ol the notice upon him 
-has be^n' held to be sufficient ground for 
the jury to presume that the 'notice so 
served upon the premises has reached the 
other who resided in another place ; 7 East 
553; 5 Esp. 196. In ejectment the defence 
of adverse possession is inconsistent with a 
tenancy, and exempts the plaintiff from the 
necessity of proving a notice to quit; Wolf 
V. Holton, 92 Mich. 136, 52 N. W. 459; Mc- 
Ginnis v. Fernandes, 126 111. 228, 19 N. E. 
44; Simpson v. Applegate, 75 Gal. 342, 17 
Pac. 237. 

At .what time it must be served. At com- 
mon law it must be given six calendar 
months before the expiration of the lease; 
1 Term 159; Nichols v. Williams, 8 Cow. 
(N. Y.) 13; Hanchet v. A^hitney, 1 Vt. 311; 
Den V. Mcintosh, 26 N. 0. 291, 42 Am. Dec. 
122; Eising v. Stannard, 17 Mass. 287; see 
Logan V. Herron, 8 S. &amp; R. (Pa.) 459; God- 
ard's Ex'rs v. R. Co., 2 Rich. (S. C.) 346; 
and three months is the common time under 
statutory regulations ; and where the letting 
is for a shorter period the length of notice 
is regulated by the time of letting; 6 Bing, 



.362; Howard V. Merriam, 5 Cush. (Mass.) 
563 ; Anderson v. Prlndle, 23 WMid. (N. Y.) 
616. Where a tenant under a lease for a 
term assents to the termination of his lease 
and continues to hold from day to day under 
a new arrangement, he is not entitled to a 
month's notice to quit; Lane v. Ruhl, 94 
Mich. 474, 54 N. W. 175; a tenant or sub- 
tenant holding over is not entitled to notice 
to quit ; Frank v. Taubman, 31 111. App. 592. 
Difficulties sometimes arise as to the period 
of the commencement of the tenancy ; and 
when a regular notice to quit on any par- 
ticular day is given, and the time when the 
term began is unknown, the effect of such 
notice, as to its being evidence or pot of the 
commencement of the tenancy, will depend 
upon the particular circumstances of its de- 
livery ;■ if the tenant, having been applied to 
by his landlord respecting the time of the 
commencement of the tenancy, has informed 
him it began on a certain day, and in conse- 
quence of such Information a notice to quit 
on that day is given at a subsequent period, 
the tenant is concluded by his act, and 
will not be permitted to prove that in point 
of fact the tenancy has a different com- 
mencement; nor is it material whether the 
information be the result of design or igno- 
rance, as the landlord is in both instances 
equally led into error; Ad. Ej. 141; 2 Esp. 
635; 2 PhUl. Ev. 186. 'In like manner, if 
the tenant at the time of delivery of the 
notice assent to the terms of it, it wiU 
waive any irregularity as to' the period of 
its expiration; but such assent must be 
Strictly proved; 4 Term 361. When the 
landlord is ignorant of the time when the 
term commenced, a notice to quit may be 
given not specifying any particular day, but 
ordering (the tenant in general terms to quit 
and deliver up the possession of the premises 
at the end of the current year of his ten- 
ancy thereof, which shall expire next after 
the end of three months from the date of 
the notice. See 2 Esp. 589. Where a notice 
to quit is necessary, the day named therein 
must be the day of, oi; corresponding to the 
day of, the conclusion of the tenancy; Fin- 
kelstein v. Herson, 55 N. J. L. 217, 26 Atl. 
688. 

What will amount to a tcaiver of the no- 
tice. The acceptance of rent accruing sub- 
sequently to the expiration of the notice 
is the most usual means by which a waiver 
of it may be produced; but the acceptance 
of such rent is open to explanation; and it 
is the province of the jury to decide with 
what views and under what circumstances 
the rent is paid and received ; Ad. Ej. 139 ; 
2 Campb. 387. if the money be taken with 
an express declaration that the notice is 
not thereby intended to be waived, or ac- 
companied by other circumstances which 
may Induce an opinion that the landlord 
did not Intend to continue the tenancy, 
no waiver will be produced by the accept- 



NOTICE TO QUIT 



2375 



NOTA STATUTA 



ance; the rent must be paid and received 
as rent, or the notice will remain In force ; 
Cowp. 243. The notice may also be waived 
by other acts of the landlord; but they 
are generally open to explanation, and the 
particular act will or will not be a waiver of 
the notice, according to the circumstances 
which attend it; 2 East 236 ; 1 Term 53. It 
has been held that a notice to quit at the end 
of a certain year is not waived by the land- 
lord's permitting the tenant to remain In 
possession an entire year after the expira- 
tion of the notice, notwithstanding the ten- 
ant held by an improving lease, — that is, to 
clear and fence the land and pay the taxes ; 
1 Binn. 333. In cases, however, where the 
act of the landlord cannot be qualified, but 
must of necessity be taken as a confirma- 
tion of the tenancy, as if he distrain for rent 
accruing after the expiration of the notice, 
or recover in an action for use and occupa- 
tion, the notice of course will be waived; 
Ad. Ej. 144; 1 H. Bla. 311; Prindle v. An- 
derson, 19 Wend. (N. Y.) 391. 

A tenant becomes a trespasser at the ex- 
piration of the time specified in a due no- 
tice to quit; and the landlord has a right 
during the tenant's absence to re-enter and 
take possession, and eject the tenant's goods 
and to keep the possession so obtained ; Free- 
man V. Wilson, 16 R. I. 524, 17 Atl. 921. A 
tenant at will, after a notice to quit, has a 
reasonable time in which to vacate the prem- 
ises; Amsden v. Blaisdell, 60 Vt. 386, 15 Atl. 
332. 

See Landlord and Tenant; Lease. 

NOTING. A term denoting the act of 
a notary in minuting on a bill of exchange, 
after it has been presented for acceptance 
or payment, the initials of his name, the 
date of the day, 'month, and year when such 
presentment was made, and the reason, if 
any has been assigned, for non-acceptance 
or non-payment, together with his charge. 
The noting is not indispensable, it being only 
a part of the .protest; It will not supply the 
protest ; 4 Term 175. 

NOTIO. The power of hearing and try- 
ing a matter of fact. Calv. Lex. 

NOTORIOUS. As used in defining adverse 
possession, it means that the character of 
the holding must possess such elements of 
notoriety that the owner may be presumed 
to have notiqe of it and of Its extent. Wat- 
rous V. Morrison, 33 Fla. 261, 14 South. 805, 
39 Am. St. kep. 139. See Straus v. Ins. Co., 
94 Mo. 187, 6 S. W. 698, 4 Am. St. Rep. 368. 

NOTORIOUSLY. Well and generally un- 
derstood. Martinez v. Moll, 46 Fed. 724. 

NOTOUR. In Scotch Law. Open; noto- 
rious. 

NOVA CUSTOMA. An imposition or duty. 
See Antiqtja Ctjstoma. 

NOVA STATUTA. English acts beginning 
with Edward III. are so called. Earlier acts 



are called Vetera statuta, or antiqua stat- 
uta. The division is due to the accidental 
arrangement of the earliest printed copies of 
the statute. The former were first printed 
in 1497 ; the latter in 1588. 2 Holdsw. Hist. 
B. L. 175. Between them were statuta in- 
certi temporis, which came to be regarded as 
of the last year of Edward II. ; but some 
were certainly older and some were never 
issued but were merely lawyers' notes, 
"apochryphal statutes," like the Apochrypha 
ip the Bible. Maitland, 2 Sel. Essays, 
Anglo-Am. Leg. Hist. 81. 

NOV&gt;E NARRATIONES. New counts or 
talys. A book of such pleadings, as were 
then in use, published in the reign of Edw. 
III. 3 Bla. Com. 297; 3 Reeve, Hist. Eng. 
Law 439. 

NOVATION (from Lat. novare, novus, 
new). The substitution of a new obliga- 
tion for an old one, which is thereby ex- 
tinguished. 

A transaction whereby a debtor is dis- 
charged from his liability to his original 
creditor by contracting a new obligation 
In favor of a new creditor by the order of 
the original creditor. Griggs v. Day, 136 N. 
T. 152, 32 N. E. 612, 18 L. R. A. 120, 32 Am. 
St. Rep. 7(H. 

It is a mode of extinguishing one obliga- 
tion by another — the substitution, not of a 
new paper or note, but of a new obligation 
in lieu of an old one — the effect of which is 
to pay, dissolve, or otherwise discharge it. 
McDonneU v. Ins. Co., 85 Ala. 401, 5 South. 
120. 

In Civil Law. There are three kinds of 
novation. 

First, where the debtor and creditor re- 
main the same, but a new debt takes the 
place of the old one. Here, either the 
subject-matter of the debt may be changed, 
or the conditions of time, place, etc., of 
payment 

Second, where the debt remains the same, 
but a new debtor is substituted for the old. 
This novation may be made without the in- 
tervention or privity of the old debtor (in 
this case the new agi-eement is called ex- 
promissio, and the new debtor expromissor), 
or by the debtor's transmission of his debt 
to another, who accepts the obligation and is 
himself accepted by the creditor. This 
transaction is called delegatio. Domat lays 
down the essential distinction between a del- 
egation and any other novation, thus:, that 
the former demands the consent of all three 
parties, but the latter that only of the two 
parties to the new debt See &gt; Deleoation. 

Third, where the debt remains the same, 
but a new creditor is substituted for the old. 
This also is called delegatio, for the reason 
adduced above, to wit: that aU three par- 
ties must assent to the new bargain. It 
differs from the cessio nominis of the civil 
law by completely cancelling the old debt, 



NOVATIOlir 



2376 



NOVATION 



while the cessio nominis leaves the cred- 
itor a claim for any balance due after as- 
signment. 

In every novation the old debt is wholly 
extinguished by the new. To .effect such 
a transformation, several things are requi- 
site. 

First, there must be an anterior oMiga- 
tion of some sort, to serve as a basis for the 
new contract. If the old debt be void, as 
being, e. g., contra lionos mores,, then the 
new debt is likewise void ; because the coi^- 
sideration for the pretended novation is 
null. But if the old contract is only void- 
able, in some cases the new one may be 
good, operating as a ratification of the old. 
Moreover, if the old debt be conditional, the 
new is also conditional unless made other- 
wise by special agreement, — which agree- 
ment is rarely omitted. 

Second, the parties innovating must con- 
sent thereto. In the modern civil law, every 
novation is voluntary. Anciently, a nova- 
tion not having this voluntary element was 
in use. And not only consent is exacted, 
but a capacity to consent. But capacity 
to make or receive an absolute payment diaes 
not of itself authorize an agreement to in- 
novate. 

Third, there must be an express inten- 
tion to innovate, — the animus novandi. A 
novation is never presumed. If an intent 
to destroy the old debt be not proved, two 
obligations now bind the debtor, — the old 
and the new. Conversely, if the new con- 
tract be invalid, without fraud in the trans- 
action, the creditor has now lost all remedy. 
The anterior obligation Is destroyed without 
being replaced by a new one. 

An important rule of novation is that the 
extinction of the debt destroys also all 
rights and liens appertaining thereto. 
Hence, if' any hypothecations be attached 
to the ancient agreement, they are can- 
celled by the new one, unless express words 
retain them. The second contract is simple 
and independent, and upon Its terms is the 
action ex stipulatu to be brought. Hence, 
too, the new parties cannot avail them- 
selves of defences, claims, and set-offs which 
would have prevailed between the old par- 
ties. 

Obviously, a single creditor may make a 
novation with two or more debtors who are 
each liable in solido. In this case any one 
debtor may make the contract to innovate; 
and if such a contract be completed, all 
his fellow-debtol's are discharged with him 
from the prior obligation. Therefore Pothler 
says that, under the rule that novation can- 
cels all obligations subsidiary to the main 
one, sureties are freed by a novation con- 
tracted by their principal. The creditor 
must specially stipulate that codebtors and 
guarantors shall consent to be bound by the 
novation, if he wish to hold them liable. If 
they do not consent to such novation, the 



parties all remain, as before, bound under 
the old debt. So in Louisiana the debt due 
to a&gt; community creditor is not necessarily 
novated by his taking the individual note of 
the surviving spouse, with mortgages to se- 
cure its payment; Rachel v. Kachel, 11 La. 
Ann. 687. 

It follows that the new debtor, in a dele- 
gation, can claim nothing under the old 
contract, since he has consented to the de- 
struction of that contract. For the same 
reason, a creditor cannot proceed against 
the discharged debtor. And this is true, 
though the new debtor should become in- 
solvient while the old remains solvent. And 
even though at the time of the novation the 
new debtor was Insolvent, still the creditor 
has lost his remedy against the old debtor. 
But the rule, no doubt, app'lies only to a 
fiowd fide delegation. And a suit brought by 
the creditor against a delegated debtor is 
Qot evidence of intention to discharge the 
original debtor; Jackson v. Williams, 11 La. 
Ann. 93. 

In a case of rmstak,e, the rule is this : If 
the new debtor agree to be substituted for 
the old, under the belief that he himself 
owes so much to the discharged debtor, 
although he do not in fact owe the amount, 
yet he is bound to the creditor on the nova- 
tion ; because the latter has been induced 
to discharge the old debtor by . the contract 
of the new, and will receive only his due 
in holding the new debtor bound. But 
where the supposed creditor had really no 
claim upon the original debtor, the sub- 
stitute contracts no obligation with him ; 
and even though he intended to be bound, 
yet he may plead the fact of no -former debt 
against any demand of the creditor, as soon 
as this fact is made known to him. 

A novation may be made dependent on 
a condition. In that case the parties re- 
main bound, as before, until the. condition 
is fulfilled. The new debtor is not freed 
from a conditional novation as to the cred- 
itor until the condition happens; and he is 
not liable In an action to the old debtor un- 
til it is performed. 

Any obligation which can be destroyed 
at all may be destroyed by novation. Thus, 
legacies, judgments, etc., with mortgages, 
guarantees, and similar accessories, are as 
much the subjects of novation as simple 
contract debts. But a covenant by the 
obligee of a bond not to sue the obligor with- 
in a certain time is not an example of the 
civil-law iovation. The agreement was not 
a release, not a substituted contract, but a 
covenant merely, for the breach of which 
the obligee has his action ; Chandler v. Her- 
rick, 19 Johns. (N. Y.) 129. 

At Common Law. The common-law doc- 
trine of novation mainly agrees with that 
of the civil law, but in some parts differs 
from it. 



NOVATION 



2377 



NOVATION 



The tej^m novation Is rarely employed. 
The usual common-law equivalent is assign- 
ment, and sometimes merger. Still, this 
form of contract found its way into com- 
mon-law treatises as early as Fleta's day, by 
whom it was called mnovatio. Item, per 
innovationem, ut si transfusa sit obligatio 
de una persona in aUam, quce in se susoeperit 
oiligationem. Fleta, lib. 2, c. 60, § 12. The 
same words here quoted are also in Bracton, 
lib. 3, c. 2, § 13, but we have novatio for 
inrwvatio. In England, recently, the term 
novation has been revived in some cases. 

A case of novation is put In Tatlock v. 
Harris, 3 Term 180. "Suppose A owes B 
f 100, and B owes C £100, and the three 
meet, and it is agreed between them that 
A shall pay C the £100: B's debt is ex- 
tinguished, and C may recover that sum 
against A." 

The requisites of a novation are (1) a 
valid prior obligation to be displaced; (2) 
the consent of all the parties to the substitu- 
tion; (3) a siifQcient consideration; (4) the 
extinction of the old obligation; and (5) 
the creation of a valid new one ; In re Eans- 
ford, 194 Fed. 658. 

If a creditor orally directs his debtor to 
pay a third party and the debtor mutually 
agrees with the third party to do so, it is a 
novation ; Castle v. Persons, 117 Fed. 844, 
54 C. C. A. 133. 

The subject of novation has been much 
before the courts In reference to the trans- 
fers of the business of life .assurance com- 
panies. In order to constitute a novation 
the old obligation must be discharged; and 
it has often been the interest of claimants 
on the transferror company, where the trans- 
feree company has become insolvent, to 
contend that there is no "novation," but that 
the old olJligation is still in force. In Eng- 
land the questions which have arisen on 
this matter are for the most part set at rest 
by the stat, 35 &amp; 36 Vict. c. 41, s. 7, pro- 
viding that no policy-holder shall be deemed 
to have abandoned any claim against the 
original company, and to have accepted in 
lieu thereof the liability of the new com- 
pany, unless such abandonment and accept- 
ance shall have been signified by some writ- 
ing signed by him, or by his agent lawfully 
authorized. Moz. &amp; W. 

There must always be a debt once existing 
and now cancelled, to serve as a considera- 
tion for the new liability. The action in all 
cases Is brought on the new agreement. 
But in order to give a right of action there 
must be an extinguishment of the original 
debt ; 1 M. &amp; W. 124 ; Short v. New Orleans, 
4 La.' Ann. 281 ; Warren v. Batchelder, 15 
N, H. 129; Caswell v. Fellows, 110 Mass. 52; 
Black v. De Camp, 78 la. 718, 43 N. W. 625 ; 
Brewer y. Winston, 46 Ark. 163. 

Where there is a substitution of a new 
contract for an -old one; the new contract 
must be a valid one upon which the creditor 



can have his remedy; Guichard v. Brande, 
57 Wis. 534, 15 N. W. 764 ; and the previous 
obligation of which novation is sought must 
be a valid one; Clark v. Billings, 59 Ind. 
509. 

No mere agreement for the transforma- 
tion of one contract into another is of effect 
until actually carried into execution and 
the consent of the parties thereto obtained. 
A good novation is an accord executed; 5 
B. &amp; Ad. 925; Cox v. Baldwin, 1 La. 410; 
Goodrich v. Stanley, 24 Conn. 621; other- 
wise, if there be no satisfaction ; 2 Scott N. 
B, 938. But as to the distinction between 
novation and accord and satisfaction, see 
that title. The discharge of the old debt 
must be contemporaneous with, and result 
from the consummation of, an arrangement 
vrith the new debtor ; Cornwell v. Megins, 39 
Minn. 407, 40 N. W. 61.0. 

But where an agreement is entered into 
by deed, that deed gives in itself a substan- 
tial cause of action; and the giving such 
deed may be a sufficient accord and satis- 
faction for a simple contract debt ; Co. Litt 
212 6; 1 Burr. 9; Jones v. Johnson, 3 W. &amp; 
S. (Pa.) 276, 38 Am. Dec. 760; Snyder v. 
Sponable, 1 Hill (N. Y.) 567. 

In the civil law delegatio, no new creditor 
could be substituted without the debtor's 
consent. This rule is observed in the com- 
mon law. Hence, without this consent and 
promise to pay, a new creditor can have no 
action against the debtor, because there is 
no privity of contract between them. To 
establish such privity there must he a new 
promise founded on sufficient consideration; 
Mandeville v. Welch, 5 Wheat. (U. S.) 277, 
5 L. Ed. 87 ; 5 Ad. &amp; E. 115 ; Cornwell v. 
Megins, 39 Minn. 407, 40 N. W. 610 ; Spycher 
V. Werner, 74 Wis. 456, 48 N. W. 161, 5 L. 
R. A. 414 ; Galls v. The Osceola, 14 La. Ann. 
54. 

But in equity a creditor may assign his 
claim fully to another without any interven- 
tion of the debtor; and the assignee is not 
even compelled to sue in his assignor's 
name; Vanbuslcirk v. Ins. Co., 14 Conn. 141, 
36 Am. Dec. 473 ; Moseley v. Boush, 4 Rand. 
(Va.) 392. 

The extinction of the prior debt is con- 
sideration enough to support a novation. 
If A holds B's note, payable to A, and as- 
signs this for value to O, B is by such 
transfer released from his promise to A, 
and .this is sufficient consideration to sus- 
tain his promise to C; Ans. Coatr. 220,; 
Bacon v. Daniels, 37 Ohio St. 279; Parsons 
V. Tillman, 95 Ind. 452 ; Bacon v. Bates, 53 
Vt. 30. And a consideration need not be ex- 
pressed in the contract of novation-; though 
one must be proved in' order to defend in a 
suit brought by creditors of the assignor. 

When assent or consideration is wanting, 
the novation operates only as a species of 
collateral security. The transferee cannot 
sue in his own name, and will be subject 



NOVATION 



2378 



NOVATION 



to all the equitable defences which the 
debtor had against the original creditor. 
This assent on the debtor's part is said to 
be essfential, for the reason that he may 
have an account with his assignor, and he 
shall not be barred of his right to a set-off. 
Siill, If anything like an assent on the part 
of a holder of money can be inferred, he 
win be considered as the debtor; 4 Bsp. 203 ; 
McNeil V. McCamley, 6 Tex. 163; if the 
debtor's assent be not secured, the order of 
transfer may be revoked before It is act- 
ed on. 

In a delegation, if the old debtor agree to 
provide a substitute, he must put his cred- 
itor into such a position that the latter can 
claim full satisfaction from the delegated 
debtor, or otherwise the original liability re- 
mains, and there is no novation; Coy v. 
De Witt, 19 Mo. 322; Appleton v. Kennon, id. 
637. See 2 M. &amp; W. 484 ; Sheehy v. Mande- 
ville, 6 Ora. (U. S.) 253, 3 L. Ed. 215; Arnold 
V. Camp, 12 Johns. (N. Y.) 409, 7 Am. Dec. 
328; Guichard v. Brande, 57 Wis. 534, 15 
N. W. 764. 

One who has contracted to pay the debts 
of another, and has been notified by a cred- 
itor that he accepts the arrangement, cannot 
be released from liability to such creditor 
by rescinding the contract without his con- 
sent; Hume V. Brower, 25 111. App. 130. 

The existing Louisiana law is based upon 
the doctrines of the Civil Code considered 
above. It is held in numerous cases that 
"novation is not to be presumed:" hence the 
receipt of a bill or note is not necessarily a 
novation, or extinguishment of the debt for 
which it is given. An express declaration 
to that effect is required in most of our 
states, or else acts tantamount to a declara- 
tion. An intention to discharge the old debt 
must be shown in all cases; and this inten- 
tion is sufficient to work a novation; Smith 
V. Brown, l2 La. Ann. 299. "The delegation 
by which the debtor gives to the creditor an- 
other debtor, who obliged himself towards 
such creditor, does not operate as a novation 
unless the creditor has expressly declared 
his intention to discharge the debtor who 
made the delegation." Choppin v. Gobbold, 
13 La. Ann. 238. 

One of the most common of modern no- 
vations is the surrender and destruction of 
an old promissory note or bill of exchange, 
and the receipt of a new one in payment 
thereof. The rules of novation apply as 
completely to debts evidenced by mercantile 
paper as to all other obligations; Story, 
Bills I 441; Pothier, , de Change, n. 189. 
Hence, everywhere, if the parties intend that 
a, promissory note or bill shall be absolute 
payment. It will be so considered; Ans. 
Contr. 273, n. ; 10 Ad. &amp; E. 593; Johnson v. 
Weed, 9 Johns. (N. Y.) 310, 6 Am. Dec. 279; 
Torrey v. Baxter, 13 Vt. 452. In some states, 
the receipt of a negotiable promissory note is 
prima facie payment of the debt upon which 



it is given, and no action lies upon the ac- 
count unless the presumption is controvert- 
ed ; Parham Sewing Mach. Co. v. Brock, 113 
Mass. 194; Bunker v. Barron, 79 Me. 62, 
8 Atl. 253, 1 Am. St. Rep. 282; Bicker v. 
Adams, 59 Vt. 154, 8 Atl. 278; Nixon v. 
Beard, 111 Ind. 137, 12 N. E. 131; Matasce 
V. Hughes, 7 Or. 39, 33 Am. Kep. 696. "If a 
creditor gives a receipt for a draft in pay- 
ment of his account, the debt is novated;" 
Hunt V. Boyd, 2 La. 109. But see the cases 
cited supra for the full Louisiana law. In 
most states,, however, the rule is, as in Eng- 
land, that, whether the debt be pre-existing 
or arise at the time of giving the note, the 
receipt of a promissory note is prima facie 
a conditional payment only, and works no 
novation. 

It is payment only on fulfilment of the 
condition, i. e. when the note is paid ; 5 Beav. 
415; Sheehy v. Mandeville, 6 Cra. (U. S.) 
264, 3 L. Ed. 215;. Murray v. Gouvemeur, 2 
Johns. Cas. (N. Y.) 438, 1 Am. Dec. 177; 
Smith V. Smith, 27 N. H. 253; Brewster v. 
Bours, 8 Cal. 501; Hart v. Boiler, 15 S. &amp; R. 
(Pa.) 162, 16 Am. Dec. 536. 

If a vendor transfer his vendee's note, he 
can only sue on the original contract when 
he gets back the note, and has it in his pow- 
er to return it to his vendee; Parker v. U. 
S., 1 Pet. C. C. 262, Fed. Cas. No. 10,750; 
Townsends v. Stevenson, 4 Rich. (S. C.) 59. 

Where the holder of a note agrees to ac- 
cept another as debtor Ini place of the maker, 
there is a complete novation of th^ debt, and 
the indorsers are discharged; 22 Can. S. 0. 
R. 479. 

A novation is not a promise to pay the 
debt of another, within the statute of frauds, 
and need not be in writing; Roehl v. Por- 
teous, 47 La. Ann. 1582, 18 South. 646. See 
Eden v. Chaffee, 160 Mass. 225, 35 N. E. 675; 
Hamlin v. Drummond, 91 Me. Il5, 39 Atl. 551. 

See Dixon, Substituted Liabilities ; Dis- 
charge; Payment; Mortgage; Merger. 

NOVEL ASSIGNMENT. See New Assign- 
ment. 

NOVEL DISSEISIN. The name of an old 
remedy which was given for a new or recent 
disseisin. 

When a tenant in fee-simple, feeTtall, pr 
for term of life, was put out and disseised 
of his lands or tenements, rents, and the ' 
like, he might sue out a writ of assize or 
novel disseisin ; and if, upon trial, he could 
prove his title and his actual seisin, and the 
disseisin by the present tenant, he was en- 
titled to have judgment to recover his seisin 
and damages for the injury sustained; 3 
Bla. Com. 187. Now obsolete. 

NOVELL/E LEONIS. The ordinances of 
the Emperor Leo, which were made from the 
year 887 till the year 893, are so called. 
These novels changed many rules of the Jus- 
tinian law. This' collection contains one 
hundred and thirteen novels, written orig- 



NOVJBLL^ LEONIS 



2379 



NOXA 



Inally in Greek, and afterwards, In 1560, 
translated into Latin by Agilseus. 

NOVELS, NOVELL/E CONSTITUTIONES. 
Jn Civil Law. The name given to the consti- 
tutions or laws of Jtistinlan and his imme- 
diate successors, which were promulgated 
soon after the Code of Justinian. 

Tt appears to have been the intention of Justin- 
Ian, after the completion of the second and revised 
edition «t the Code, to supply what had not been 
loreseen in the preceding laws, together with any 
necessary amendments or alterations, not by revis- 
ing the Code, but by supplementary laws. Such 
Jaws he promulgated from time to time; but no 
offlciall compilation of them is known to have been 
made until after Ms death, when bis laws,* 159 in 
■number, with those of tbe reigns of Justin II. and 
Tiberias, nine in number, were collected, together 
with some local edicts, under this name. They be- 
long to various times between 535 and 565. 

Although the Novels of Justinian are the best 
Icnown, and whoa the word Novels only is men- 
tioned those of Jostiniian are always intended, he 
'.was not the first wbo ;ased that name. Some of the 
■acts of Theodosins, Valentinian, Leo, Severiis, 
■Authennius, and others, were ' also called Novels. 
■But the Novels ol tbe emperors who preceded Jus- 
tinian had not the force of law after the legislation 
of that emperor. Those Novels are not, however, 
entirely useless: because, the Code of Justinian 
having been compelled to a iconsiderable e^Ctent from 
the Theodosian Oe&amp;e and the earlier Novels, the 
latter frequently iremove doubts which arise, on 
the construction off tbe Code. 

The original lasguage of the Novels was for the 
most part Greek: Ibnt tbey are represented in the 
Corpus Juris CivOis by sa Latin translation of X34 
of them. These ftiirm tlie tourth part of the Corpus 
Juris Civilis. They a-re directed either to some 
officer, or an arcMbishop or bishop, or to some pri- 
vate individual of ^Constantinople ; but they all had 
the force and authority .of law. 

The 118th Novel is ihe foundation and ground- 
work of the English Statute of Distribution of In- 
testates' Effects, which has been copied in many 
states of the Union. See 1 P. Wms. 2,7; Free, in 
Chanc. 593 ; Civu. L&amp;w;; Code. 

NOVELTY, la Patent Law. See Patent. 

NO VI GILD. A pecuniary satisfaction for 
am injury, amounting to nine times the value 
©if the thing for whicb it was paid. Spelman. 

NOVUS HOMO (La*, a new man). This 
term is applied to a man who has been par- 
doned of a crime, by which he is restored 
to society and is rehabilitated. 

NOW. At this time, or at the present mo- 
ment; or at a time contemporaneous with 
something done. Pike v. Kennedy, 15 Or. 
426, 15 Pac. 637. At the present time. Nutt 
V. U. S., 26 Ct. CI. 15. In a will the word 
now is construed to mean at the death of 
the testator; 53 L. J. Ch. 1163 (reversed on 
other grounds, 30 Ch. D. 50) ; except where 
persons or classes must be ascertained or a 
description of property fixed; 30 L. J. Ex. 
230; 6 H. &amp; N. 583, where the word now is 
held to refer to the date of the will. 

NOXA (Lat). In Civil Law. Damage re- 
sulting from an offence committed by an irre- 
sponsible agent. The offence itself. The 
punishment for the offence. The slave or 
animal who did the offence, and who is de- 
livered up to the person aggrieved (datur 



nomw) unless the owner choose to pay the 
damage. The right of action is against who- 
ever becomes the possessor of the slave or 
animal (noxa caput sequitur). D. de furt. 
h. 41; Vicat, Voc. Jur. ; Oalv. Lex. 

NOX&gt;E DEDITIO. The surrender of a 
slave who has committed a misdeed. The 
master may elect whether he will pay the 
damages assessed or surrender the' slava 
Noxa is the body that has done the harm; 
i. e. the slave. Hunter, Rom. Law, 166. 

NOXAL ACTION. See Noxa. 

NOXIOUS. Hurtful; offensive. Within 
the meaning of a statute prohibiting noxious 
or offensive trade or manufactures, brick- 
making is not included. 32 L. J. M. C. 135 ; 
13 C. B. N. s. 479. 

A thing is noxious If capable of doing 
harm. And if noxious as administered, al- 
though innoxious if differently administered ; 
49 L. J. M. C. 44; 5 Q. B. Div. 307; 13 Cox 
547; 12 id. 463. 

NUBILIS (Lat). In Civil Law. One who 

is of a proper age to be married. Dig. 32, 51. 

NUDE. Naked. Figuratively, this word 
is now applied to various subjects. 

Nude matter is a bare allegation of a thing 
done, without any evidence of it. 

NUDUM PACTUM. In Roman Law. In- 
formal agreements not coming within any 
of the privileged classes. They could not 
be sued on. The term was sometimes used 
with a special and rather different meaning 
to express the rule that a contract without 
delivery will not pass property; Pollock, 
Contracts 743. See Considebation ; Sal- 
mond. Jurisprudence 640. 

It is now commonly used to express a con- 
tract made without a consideration. 

NUISANCE. Anything that unlawfully 
worketh hurt, inconvenience, or damage. 3 
Bla. Com. 5, 216. See Cooley, Torts 670. 

That class of wrongs that arises from the 
unreasonable, unwarrantable, or unlawful 
use by a person of his own property, either 
real err personal, or from his own improper, 
indecent, or unlawful personal conduct, 
working an obstruction of or to the right of 
another, or of the public, and producing such 
material annoyance, inconvenience, discom- 
fort, or hurt that the law will presume a 
consequent damage. Wood, Nuisance. 

A private nuisance is anything done to the 
hurt or annoyance of the lands, tenements, 
or hereditaments of another. It produces 
damage to but one or a few persons, and" 
cannot be said to be public; Ely v. Board, 36 
N. y. 297; State v. Paul, 5 R. I. 185; Ad. 
Eq. 210; 3 Bla. Com. 215; Webb, Poll. Torts 
484. 

A pubUo or cpmmon nuisance Is such an 
inconvenience or troublesome offence as an- 
noys the whole community in general and 
not merely some particular person. It pro- 



NtriSANCE 



2380 



NUISANCE 



duces no special injury to one more than 
another of the people ; 1 HawlJ. PI. Cr. 197 ; 
4 Bla. Com. 166. 

A. missed nuisance Is one which, while pro- 
ducing injury to the public at large, does 
some special damage to some Individual or 
class of individuals; Wood, Nuisance .35. 

It is difficult to say what degree of an- 
noyance constitutes a nuisance. If a thing 
is calculated to Interfere with the comfort- 
able enjoyment of a man's house, It is a nui- 
sance; 3 Jur. N. s. 571. In relation to of- 
fensive trades, it seems that when such a 
trade renders the enjoyment of life and prop- 
erty uncomfortable it is a nuisance; 1 Burr. 
333; Wesson v. Iron Co., 13 Allen (Mass.) 
95, 90 Am. Dec. 181 ; 116 E. C. L. 608 ; Re- 
quena v. Los- Angeles, 45 Oal. 55 ; State v. 
Kaster, 35 la; 221; Allen v. State, 34 Tex. 
230; for the neighboi^hood has a right to 
pure and fresh air ; 2 C. &amp; P. 485 ; Duncan 
V. Hayes, 22 N. J. Eq. 26; 4 B. &amp; S. 608. Ev- 
ery citizen holds his property subject to the 
implied obligation that he will' use it in such 
way as not to prevent others from enjoying 
the use of their property; State v. ¥opp, 97 
■ N. C. 477, 2 S. B. 458, 2 Am. St. Rep. 305. 

It is not a defence that a business is in 
the best place possible for the defendant or 
that it is conducted in the proper manner 
with the latest devices, when the evidence 
shows that when so conducted it still results 
in very great damage to, if not the total de- 
struction of, the property of complainants 
who reside in the vicinity, the rights of 
haliitation being superior jx) the rights Of 
trade ; American S. &amp; R. Co. v. Godfrey, 158 
Fed. 225, 89 C. O. A. 139, 14 Ann. Cas. 8. 

A thing may be a nuisance in one place 
which is hot so in another'; therefore the 
. situation x&gt;v 'locality of the nuisance must be 
considered. A tallow-chandler, for example, 
setting up his. business among other tallow- 
chandlers, an,d increasing the noxious smells 
of the neighborhood, is not guilty of setting 
up a nuisance unless the annoyance is much 
increased by the new manufactory ; Peake 
91. Such an establishment might be a nui- 
sance in a thickly populated town of mer- 
chants and mechanics Where no such busi- 
ness was carried on ; Dennis v. Eckhardt, 3 
Grant (Pa.) 390. The same doctrine ob- 
tains as regards other trades or employ- 
ments. Persons living in populous manufac- 
turing towns must expect more noise, smoke, 
and disturbance than those living elsewhere, 
and the circumstances of every case must 
govern; Whitney v. Bartholomew, 21 Conn. 
213. A private hospital in a fashionable 
square in Dublin is an offensive trade ; [1896] 
1 I.-R. '76. A private lunatic asylum is not 
an offensive trade; 2 A. &amp; B, 161. 

Coal buEning w.as at one time decided to be 
a nuisance, and on petition Edw. II. issued 
a proclamation against the using it in Lon- 
don ; Ohamb. Encyc. tit- Coal, cited in 8 Ont. 



Q. B. Div. 583, where it was held that a 
barbed wire fence -is not a nuisance. A city 
Qrdinanice declaring a public laundry to be a 
nuisance if carried on in a city except in 
designated parts of it, is unconstitutional 
as contravening the XlVth amendment; In 
re Hong Wah, 82 Fed. 623. Carrying oil an 
offensive trade" for several years in a place 
remote from buildings and pubUp roads does 
not entitle the owner to continue it in the 
same place after houses have been built :and 
roads laid out in the neighborhood. Former- 
ly the contrary doctrine obtained, on the 
ground that the complainants were in fault 
in coming to a nuisance. This doctrine is 
now exploded, as it is manifest that an ob- 
servance of it would interfere greatly, with 
the growth of cities ; Com. v. Tipton, 6 Gray 
(Mass.) 473 ; 2 C. &amp; P. 483 ; Brady v. Weeks, 
3 Barb. (N. Y.) 157; Board of Health v. 
Lederer, 52 N. J. Eq. 675, 29 Atl. 444; People 
V. White Lead Works, ,82 Mich. 471, 46 N. 
W. 735, 9 L. R. A. 722- 11 H. L. Cas. 642; ■ 
Bushnell v. Robeson, 62 la; 540, 17 N. W. 
888 ; Woodruff v. Min. Co., 18 Fed. 753. 

The trade may be offensive for noise; Mc- 
ICeon V. See, 51 N. Y. 300, 10 Am. Rep. 659 ; 
L. R. 4 Ch. App. 388 ; 2 Sim. n. s. 133 ; li. R, 
8 Ch. App. 467; Com. v. Smith, 6 Cush. 
(Mass.) 80; Leete v. Congregational Soc, 14 
Mo. A.pp. 590 (as to noise, see 40 Am. L. Rev. 
301); or smell; 2 C. &amp; P. 485; Allen v. State, 
34 Tex. 230 ; Bishop v. Banks, 33 Conn. 121, 
87 Am. Dec. 197 ; State v. Wilson, 43 N. H. 
415, 82 Am. Dec. 163; Shirely v. R. Co., 74 
la. 169, 37 N. W. 133, 7 Am. St. Rep. 471; 
or for other reasons; People v. Sands, 1 
Johns. (N. Y.) 78, 3 Am. Dec. 296 ; L. R. 
6 Eq. Ca. 166 ; Thompson v. R. Co., 51 N. J. 
L. 42, 15 -An. 833; Pensacola Gas Co. v. 
Pebley, 25 Fla. 381, 5 South. 593. 

To constitute a public nuisance, there must 
be such a number of persons annoyed' that 
the offence can no longer be considered a pri- 
vate nuisance; 1 Burr. 337; Hackney v. 
State, 8 Ind. 494 ; Hajrower v. Ritson, 37 
Barb. (N. Y.) 301. Where pugiUstic enter- 
tainments were given at a club and crowds 
collected outside, and men whistled for cabs 
during' late hours, it was held a nuisance 
which would be enjoined ; 63 L. T. 65. 

PuMic nuisances arise in consequence of 
following particular trades; ^y which the air 
is rendered offensive and noxious; Cro. Oar. 
510; 1 Burr. 333; 4 B, &amp; S. 608; State v. 
Woodward, 23 Vt. 92; Board of Health v. 
Lederer, 52 N. J. Eq. 675, 29 Atl. 444 ; also 
where rendered offensive from stagnant 
ponds; Rochester v. Simpson, 134 N. Y. 414, 
31 N. E. 871 ; from acts of public indecency, 
as bathing in a public river in sight of the 
neighboring houses; 2 Campb. 89; State v. 
Taylor, 29 Ind. 517 ; State v. Millard, 18 Vt 
574, 46 Am. Dec. 170; Miller y. People, 5 
Barb. (N. Y.) 203; or for acts tending to a 
breach of the public peace, as for. drawing 



NUISANCE 



2381 



NUISANCE 



a number of persons Into a field for the pur- 
pose of pigeon-shooting, to the disturbance 
of the neighborhood ; 3 B. &amp; Aid. 184 ; or for 
rude and riotous sports or pastimes ; 6 C. &amp; P. 
32-J:; or keeping a disorderly house; Com. v. 
Howe, 13 Gray (Mass.) 26; State v. Wil- 
liams, 30 N. J. L. 103; or a gaming house; 
Hawk. PI. Cr. b. 1, c. 75, § 6; or a haw&amp;y- 
house; Darling v. Hubbell, '9 Conn. 850; Cran- 
ford V. Tyrrell, 128 N. T. 341, 28 N. B. 514 ; 
State V. Osgood, 85 Me. 288, 27 Atl. 154 ; or a 
merry-go-round; Town of Davis v. Davis, 40 
W. Va. 464, 21 S. E. 906 ; or a dangerous ani- 
mal, known to be such, and suffering him to 
go at large, as a large bulldog accustomed to 
bite people; Kertschacke v. Ludwig, 28 Wis. 
430; Oakes v. Spaulding, 40 Vt. 347, 94 Am. 
Dec. 404 ; or exposing a person having a con^ 
tagious disease, as the smallpox, in public; 
4 M. &amp; S. 73, 472 ; and the like. The bring- 
ing a horse infected with the glanders into a 
public place, to the danger of infecting the 
citizens, is a misdemeanor at common law ; 
2 H. &amp; N. 299: Fisher v. Clark, 41 Barb. (N. 
Y.) 329. The selling of tainted and unwhole- 
some food is likewise indictable ; 4 Bla. Com. 
162; State v. Smith, 10 N. C. 378, 14 Am. 
Dee. 594 ; 3 M. &amp; S. 11. The leaving unbur- 
led the corpse of a person for whom the de- 
fendant was bound to provide Christian 
burial, as a wife or child, is an indictable 
nuisance, if he is shown to have been of 
ability to provide such burial; 2 Den. Cr. 
Cas. 325. So of storing combustible articles 
in undue quantities or in improper places; 
Bradley v. People, 56 Barb. (N. T.) 72; 3 
East 192; Henderson v. Sullivan, 159 Fed. 
46, 86 C. C. A. 236, 16 L. R. A. (N. S.) 691, 

14 Ann. Cas. 590 ; Rhodes v. Dunbar, 57 Pa. 
274, 98 Am. Dec. 221; or the placing of a 
powder magazine in dangerous proximity to 
a city; Chicago, W. &amp; V. Coal Co. v. Glass, 
34 111. App. 364 ; or the erection and mainte- 
nance of purprestures ; People v. Vanderbilt, 
28 N. T. 396, 84 Am. Dec. 351; State v. Wood- 
ward, 23 Vt. 92; or the keeping of a coal- 
shed by a railroad in a thickly settled part 
of a city; Wylie v. Elwood, 134 111. 281, 25 
N. E. 570, 9 L. K. A. 726, 23 Am. St. Rep. 673; 
or maintaining a powder magazine within 
the city limits, against an ordinance ; Hazard 
Powder Co. v. Volger, 58 Fed. 152, 7 C. C. A. 
130, 12 U, S. App. 665; or bull-fighting; 
State V, Canty, 207 Mo. 439, 105 S. W. 1078,- 

15 L. B. A. (N. S.) 747, 123 Am. St. Rep. 
393, 13 Ann. Cas. 787 ; or using property for 
a prize fight; Columbian Athletic Club v. 
State, 143 Ind. 98, 40 N. B. 914, 28 L. R. A. 
727, 52 Am. St. Rep. 407; or a stable; Oehl- 
er V. Levy, 234 111. 595, 85 N. E. 271, 17 L. 
R. A. (N. S.) 1025, 14 Ann. Cas. 891; or 
the storage of tons of dynamite; Hender- 
son V Sullivan, 159 Fed. 46, 86 C. C. A. 
236, 16 L. R. A. (N. S.) 691, 14 Ann. Cas. 
590; or the keeping, standing, or exhibiting 
of stallions and jacks in a public place ; Ex 



parte Foote, 70 Ark. 12, 65 S. W. 706, 91 Am. 
St. Rep. 63 ; or maintaining in a public place 
a house where pools are sold on horse races ; 
Respass v. Com., 131 Ky. 807, 115 S. W. 1131, 
21 L. R. A. (N. S.) 836; or the erection of a 
water tank by a railroad on a populous pub- 
lic place; Chicago, G. W. R. Co. v. Church, 
102 Fed. 85, 42 C. C. A. 178, 50 L. R. A. 488 ; 
or maintaining in Havana, Cuba, a public 
slaughter house from which offal ran into 
the harbor; O'Reilly De Camara v. Brooke, 
142 Fed. 858, affirmed in 209 U. S. 45, 28 Sup. 
Ct. 439, 52 L. Ed. 676. 

One who has been divested of littoral 
rights cannot maintain a suit to enjoin ob- 
structions to his access to navigable waters 
in front of his land under the rule that indi- 
viduals are not entitled to redress against a 
puiUc nuisance; McCloskey v. Coast Co., 160 
Fed. 794, 87 0. C. A. 568, 22 U B, A. (N. S.) 
673. 

Private nuisances may be to corporeal in- 
heritances : as, for example, if a man should 
build his house so as to throw the rain-wa- 
ter which fell on it on my land ; Pitzherbert, 
Nat. Brev. 184; Aiken v. Benedict, 39 Barb. 
(N. Y.) 400; 5 Rep. 101; have a tree project- 
ing over the land of another ; Poll. Torts 62 ; 
keep hogs or other animals so as to incom- 
mode his neighbor and render the air un- 
wholesome; 9 Co. 58 ; Com. v. Perry, 139 
Mass. 198, 29 N. E. 656 ; or to incorporeal 
hereditaments ;■ as, for example, obstructing 
a right of way by ploughing it up or laying 
logs across it, and the like ; Fitzherbert, Nat.' 
Brev. 183; 2 RoUe, Abr. 140; Holmes v. 
Jones, 80 Ga. 659, 7 S. E, 168; or obstructing 
a spring ; 1 Campb. 463 ; or "shooting" a gas; 
well; Tyner v. Gas Co., 131 ind. 408 ; or mak- 
ing musical and other sounds, for the put-) 
pose of vexing and annoying the next door- 
neighbor; [1893] 1 Ch. 316; interfering with 
a franchise, as a ferry or railroad, by a- 
similar erection unlawfully made ; or with a 
navigable stream by a railroad bridge erect- 
ed without authority ; South Carolina R. Cd.' 
V. Moore, 28 Ga. 398, 73 Am. Dec. 778, Any 
annoyance arising from ' odors, smoke, un- 
healthy exhalations, noise, interference with 
water powei;, etc., etc., whereby a man is pre- 
vented from fully enjoying his own property, 
may be ranked as a private nuisance. Se^ 
Adams V. Car Co., 131 Ind. 375, 31 N. E. 57^ 
Hauck V. Pipe Line Co., 153 Pa. 366, 26 Atl. 
644, 20 L. R. A. 642, 34 Am. St. Rep. 710; 
Fogarty v. Brick Co., 50 Kan. 478, 31 Pac. 
1052, 18 L. R. A. 756; Pach v. GeofCroy, 67 
Hun 401, 22 N. Y. Supp. 275; [1893] 2 Ch. 
447; polluting a stream by discharge of 
drainage ; Morgan v. Danbury, 67 Conn. 484, 
35 Atl. 499 ; Valparaiso v. Moffitt, • 12 Ind. 
App. 250, 39 N. E. 909, 54 Am. St. Rep. 522 ; 
lowering the grade of a highway; 17 U. C 
Q. B. 165; building a railway across it un- 
lawfully; Com. V. R. Co., 4 Gray (Mass.) 22; 
falling to keep a street railway in repair; 



NUISANCE 



2382 



NCriSANOE 



Railway Co. v. State, 87 Tenn. 746, 11 S. W. 
946. So making noises in the street and 
thereby occasioning damage to citizens ; Com. 
V. Smith, 6 Cush. (Mass.) 80; arid making 
a great outcry and clamor in the streets, by 
which peqple are drawn together and the 
highway obstructed; Com. v. Harris, 101 
Mass. 29; and even though the noise dis- 
turbed but a single person ; Com. v. Oaks, 113 
Mass. 8 ; and a continuous and daily beating 
of drums on the street; In re Flaherty, 105 
Cal. 558, 38 Pac. 981, 27 L. R. A. 529; if it 
be so troublesome as to annoy the whole 
community; State v. Hughes, 72 N. C. 27. 

Generally, obnoxious vapors and smoke 
from a gas manufactory constitute a private 
nuisance; Brown v. lUius, 25 Conn. 583; Ot- 
tawa G. L. &amp; C. Co. V. Thompson, 39 111. 598 ; 
Farley v. Gas Light Co., 105 Ga. 323, 31 S. 
E. 193; Cleveland v. Gas Light Co., 20 N. J. 
Bq. 201; Rosenheimer v. Gas Light Co., 39 
App. Div. 482, 57 N. Y. Supp. 330; also gas 
works so operated that the percolations from 
the refuse matter therefrom contaminate the 
waters of neighboring wells; Farley v. Gas 
Light Co., 105 Ga. 323, 31 S. E. 193 ; Beatrice 
Gas Co. V. Thomas, 41 Neb. 662, 59 N. W. 
925, 43 Am. St Rep. 711; Keiser v. Gas Co., 
143 Pa. 276, 22 Atl. 759 (and it Is no excuse 
that the company has legislative authority 
to make gas; Bohan v. Gaslight Co., 122 N. 
Y. 18, 25 N. E. 246, 9 L. R. A. 711) ; or to 
contaminate the waters of a stream with 
tarry or oily substances from gas works ; 
Carhart v. Gas Light Co., 22 Barb. (N. Y.) 
297. 

Railroad terminals needlessly located near 
. to private property ; Rainey v. R. Co.; 99 Tex. 
276, 89 S. W. 768, 90 S. W. 1096, 3 L. R. A. 
(N. S.) 590, 122 Am. St. Rep. 622,, 13 Ann. 
Cas. 580; driving a current of foul air 
against the windows of another; Vaughan 
v. Bridgham, 193 Mass. 392, 79 N. E. 739, 9 
L. R. A. (N. S.) 695; the keeping of barking 
and howling dogs and whining puppies ; Her- 
ring V. Wilton, 106 V^. 171, 55 S. E. 546, 7 L. 
R. A. (N. S.) 349, 117 Am. St. Rep. 997, 10 
Ann. Cas. 66; may be nuisances; but the 
noises and odors issuing from chicken hous- 
es; Wade V. Miller, 188 Mass. 6, 73 N. B. 
849, 69 L. R. A. 820 ; public dances and pic- 
nics, in their nature ; Com. v. R. Co., 139 Ky. 
429, 112 S. W. 613, 18 L. R. A. (N. S.) 699, 
Ann. Cas. 1912B, 427 (otherwise of an aero- 
bat performing on a wire on a public street; 
Wheeler v. Ft. Dodge [la.] 108 N. W. 1057, 9 
L. R. A. [N. S.] 146); the display of fire- 
works in a city street pf itself; Milker v. 
New York, 190 N. Y. 487, 83 N. B. 565, 16 L. 
R. A. (N. S.) 621, 13 Ann. Cas. 544; the burn- 
ing of b;-ick; Phillips v. Tile Co., 72 Kan. 
643, 82 Pac. 787, 2 L. R. A. (N. S.) 92; and 
the unavoidable noises of an ice plant ; Le 
Blanc V. Mfg. Co., 121 La. 249, 46 South. 226, 
17 L. R. A. (N. S.) 287; are not nuisances. 
Noise made by hogs kept for slaughter is 



not such a nuisance as to justify the destruc- 
tion of a slaughter house business ; Ballen- 
tine 7. Webb, 84 Mich. 38, 47 N. W. 485, 13 
L. R. A. 321 ; the noise of carefully switched 
railroad trains to a religious society whose 
services are disturbed by them is not a nui- 
sance; Church of Latter-Day Saints v. R. 
Co., 36 Utah, 238, 103 Pac. 243, 23 L. R. A. 
(N. S.) 860, 140 Am. St Rep. 819. 

The vibration due to a gas engine which in- 
jures adjoining premises and affects the com- 
fort of its occupant may be enjoined, though 
in an industrial district of Glasgow; [1912] 
S. O. 156 (Sc. Ct q. Sess.) ; but residents in 
large industrial cities must put up with a 
certain amount of noise which accompanies 
the reasonable recreations of a crowded pop- 
ulation. The question in each case is wheth- 
er such noises aifiount to a substantial inter- 
ference with the comfort of neighbors upon 
ordinary sober common sense standards; 
New Imper. Hotel Co. v. Johnson, [1912] 1 
I. R. 327. 

See several full notes on nuisances in 39 
L. R. A. ; and see Municipal Corporations; 
Oedinance. 

A person is not liable in damages for a 
nuisance erected oji land by his grantor 
until after a request to abate; Rouse v. R. 
Co., 42 111. App. 421; but see Whitenack v. 
R. Co., 57 Fed. 901. 

The remedies are by an action for the 
damage done, by the owner, in the case of 
a: private nuisance; 3 Bla. Com. 220; or by 
any party suffering special damage, in the 
case of a public nuisance ; Lansing v. Smith, 
4 Wend. (N. Y.) 9, 21 Am. Dec. 89; Pitts- 
burgh v. Scott, 1 Pa. 309; Vaugh. 341; 3 
M. &amp; S. 472; 2 Bingh. 283; Hatch v. R. Co., 
28 Vt 142; Yolo County v. Sacramento, 36 
Cal. 193; Hughes v. R. Co., 2 R. I. 493; 
San Jose Ranch Co. v. Brooks, 74 Cal. 463, 
16 Pac. 250; Ison v. Manley, 76 Ga. 804; 
Knowles V. R. Co., 175 Pa. 623, 34 Atl. 974, 
52 Am. St. Rep. 860; by abatement by the 
owner, when the nuisance is private; 2 
Rolle, Abr. 565 ; 3 Dowl. &amp; R. 556 ; Rhea v. 
Forsyth, 37 Pa. 503, 78 Am. Dec. 441 ; and in 
some cases when it is public; Add. Torts' 
71. But in neither case must there be any 
riot, and very pressing exigency is requisite 
to justify summary action of this character, 
particularly in the case of a public nui- 
sance; Wetmore v. Tracy, 14 Wend. (N. Y.) 
250, 28 Am. Dec. 525; Harvey v. Dewoody, 

18 Ark. 252; 16 Q. B. 546; by injunction, 
which is the most usual and efficacious rem- 
edy; see Injunction; or by indictment for 
a public nuisance; 2 Bish. Or. L. § 856; 
Whart. Cr. L. § 1410, etc.; State v. R. Co., 
57 Vt 144 ; State v. Railroad, 91 Tenn. 445, 

19 S. W. 229. A private individual cannot 
abate a nuisance in a public highway, un- 
less it does him special injury, and then 
only so far as is necessary to the exercise of 
his right of passing alor^ the highway ; The 



KUISANCB 



2383 



NUISANCE 



Brlnton, 66 Fed. 71, 13 C. C. A. '331, 26 V. S. 
App. 486; 9 Co. 55; 3 Bla. Com. 5; Shaw 
V. R. Co., 159 Mass. 597, 35 N. E. 92 ; Houck 
V. Wachter, 34 Md. 265, 6 Am. Rep. 332. The 
courts have had some difficulty in determin- 
ing what was a sufficient special injury to 
enable a citizen to sue for a public nuisance 
obstructing a navigation right; Thayer v. 
R. Co., 125 Mass. 253; Frost v. R. Co., 96 
Me. 76, 51 Atl. 806, 59 L. R. A. 68; Steam- 
boat Co. V. R. Co., 46 S. C. 329, 24 S. E. 337, 
33 L. R. A. 541, 57 Am. St. Rep. 688; Lam- 
niers v. Brennan, 46 Minn. 209, 48 N. W. 766 ; 
he may abate a public nuisance only when 
It is also a private nuisance as to him, or 
incommodes him more than the general pub- 
lic; Brown v. Perkins, 12 Gray (Mass.) 89. 

Every continuance of a nuisance or re- 
currence of the injury is an additional nui- 
sance forming in itself the subject-matter of 
a new action; Sloggy v. Dilworth, 38 Minn. 
179, 36 N. W. 451, 8 Am. St. Rep. 656. 

Relief in equity by abatement is not the 
necessary sequence of the establishment of 
the charge of nuisance. Criminal nuisances 
are abatable by criminal process, and where 
this process is adequate, jurisdiction in 
equity fails, either because adequate legal 
remedy precludes jurisdiction in equity or 
the subject-matter Is beyond the scope of 
equity jurisdiction. If a nuisance, purely 
criminal, injures or affects a private plain- 
tiff In certain respects, he may resort to 
equity for relief ; but the existence of neither 
a civil nor criminal public nuisance neces- 
sarily calls for the interpositlot of equity. 
A private person cannot abate it unless it 
is specially prejudicial to him, and the state 
cannot proceed against it in equity if it be 
merely a criminal nuisance, unattended by 
Injury to a personal or property right of 
some sort, creating a necessity for the pre- 
vention of irreparable Injury ; State v. Ehr- 
llck, 65 W. Va. 700, 64 S. E. 935, 23 L. R. A. 
(N. S.) 691; People v. Condon, 102 111. App. 
449. 

Obstructions to highways, public grounds, 
harbors, landings, etc., are classed by the 
old writers as "purprestures," signifying en- 
closures. In such cases the attorney general' 
may proceed in equity to abate the nuisance. 
Whether it be a criminal nuisance or not is 
wholly immaterial. If it is indictable as a 
crime, it does not bar the remedy in equity, 
teca^se the citizen and the general public 
have an immediate right to the enjoyment of 
tho "^Ing interfered with. The decisions 
awarcflng injunctions to abate purprestures 
are &gt;»ijpierous. Of this character was the 
lt&gt;.i^M|iii granted in the Debs Case, 158 U. 
f^ii^S Sup. Ct. 900, 39 L. Ed. 1092, and 
alsoajtitan Tp. v. R. Co., 49 N. J. Eq. 11, 
23 A.tl. 127 ; People v. Beaudry, 91 Cal. 213, 
27 -^ac. 610; State v. Power Co., 82 S. C. 
183 63 a. E. 884, 22 L. R. A. (N. S.) 435, 
12S Am. St. Rep. 876, 17 Ann. Cas. 343. 



Bqidty will not restrain the keeping of an 
unlicensed dram shop, though the keeping 
of it Is a public nuisance; State v. Uhrig, 14 
Mo. App. 413; or restrain gambling ; Cope 
V. District Fair Ass'n, 99 111. 489, 39 Am. 
Rep. 30 ; or pool selling ; People v. Condon, 
102 111. App. 449 ; or keeping a gaming 
house; State v. EhrUck, 65 W. Va. 700, 64 
Si. E. 935, 23 L. R. A. (N. S.) 691; or the 
keeping of slaughter houses on the banks of 
a rmmlng stream or placing dead animals 
therein; TIede v. Schneidt, 99 Wis. 201; 
nor will it restrain the breach of a covenant 
on the ground that the act covenanted 
against was criminal, injury to property re- 
sulting therefrom havmg been waived; 
Ocean City Ass'n v. Schurch, 57 N. J. Eq. 
268, 41 Atl. 914. 

Equity will consider the comparative in- 
jury which will result from the granting or 
refusing of an injunction, and it will not be 
granted where it will be inequitable and op- 
pressive, as where it would cause a large 
loss to defendant and others, while the in- 
jury, if it is refused, would be comparatively 
slight and can be compensated by damages; 
Mountain Copper Co. v. U. S., 142 Fed. 625, 
73 C. C. A. 621. 

See Wood, Nuisance, as to municipal au- 
thority to abate a nuisance ; 9 L. R. A. 
711, note. 

According to the principles of equity as 
recognized in the Courts of the United 
States, a state can obtain relief by a suit In 
equity to restrain a public nuisance ; Coosaw 
MIn. Co. V. South Carolina, 144 U. S. 550, 12 
Sup. Ct. 689, 36 L. Ed. 537. 

NUL AGARD (L. Fr. no award). A plea 
to an action on an arbitration bond, when 
the defendant avers that there was no legal 
award made. 3 Burr. 1730. 

NUL DISSEISIN. No dissfisin A plea 
in a real action, by which the defendant de- 
nies that there was any disseisin. It l.«, a 
species of the general issue. ' 

NUL TIEL RECORD /^Fr. jio such rec- 
ord). A plea which is proper when it is 
proposed tp disprove the existence of the 
record on which the plaintiff founds his ac- 
tion. Andr. Steph. PI. 234. 

Any .matters may be introduced vrijd^r 
it which tend to destroy the validity oT 
the record as a record, provided they do 
not contradict the recitals of the record 
itself ; Bennett v. Morley, 10 Ohio 100. It is 
frequently used to enable the defendant to 
deny the jurisdiction of the court from 
which the alleged reCord emanates; Jac- 
quette v. Hugunon, 2 McLean, 129, Fed. Cas. 
No. 7,169. . 

It is said to be the proper plea' to an ac- 
tion on a foreign judgment, especially if 
of a sister- state ; Newcomb v. Peck, 17 Vt. 
302, 44 Am. Dec. 340; Hall v. Williams, 6 
Pick. (Mass.) 232, 17 Am. Dec. 356; though 
it is^held that nil debet is sufficient; Clark 



NUL TIEL RECORD 



2384 



nuIjLIty of marriage 



V. Mann, 33 Me. 268; Williams v. Preston, 3 
J. J. Marsh. (Ky.) 600, 20 Am. Dec. 179; es- 
pecially if tlie judgment be that of a justice 
of the peace; Graham y. Grigg, 3 Harr. 
(Pel.) 408. It has been held that it is an in- 
appropriate plea to suits upon foreign judg- 
ments, since such judgments do not create 
a merger, and are only, priroo facie evidence 
of an indebtedness ; Tourigny v. Houle, 88 
Me. 406, 34 Atl. 158. 
See CowrLicT of Laws. 

NUL TORT (L. Fr. no wrong). A plea to 
a real action, by which the defendant denies 
that he committed any wrong. It Is a spe- 
cies of general issue. 

NUL WASTE. The general issue in an 
aetion of waste. Co. 3d Inst. 70(&gt; o, 708 a. 
The plea of nul waste admits nothing, but 
puts the whole declaration in issue ; and in 
support of this plea the defendant may give 
in eyidence anything which proves that the 
5.et charged is no waste, as that it happened 
by tes^ippest, lightning, and the like ; Co. Litt 

283 «v 3 Wms. Saund. 238, n. 5. 

« 

NULL. Pro)perly, that which does not ex- 
ist; thlat which is not in the nature of things. 
In a figurative sense it signifies that which 
has no more effect than if it did not exist. 
8 To\&lt;llier, n. 320. 

NUfeLA BONA (L. La|i.. no goods). The 
return^made to ay?^*); of fieri Jacias by the 
sheriff, 'wfien he Has not found any goods 
of the defendant on which he capld levy. 

NULLITY. An act or proceeding which 
has absolutely no legal effect whaJtever. See 
Chitty, Contr., 12th ed. 671. 

NUiyLlTY OF MARRIAGE. The requi- 
sites of a valid and binding marriai^e have 
been considered in the a*ticle on that sub- 
ject. If any ef these requisites are waiting 
..in a giv^^ase, the :lyi9rriage is either abso- 
lui pl,v vuid, or voidable at the election of 
one o"i- .both of the parties. The more usual 
Imperfectian?, which iius render a marri^e 
void or voidable are;.. 1. Unsoundness of 
mind in either of the parties. 2. Want of 
agr i c. four*. in males and, twelve In 
f'i i. H. ■'" (1 ir error; but these must 
r ._to t!. itiats of the relation, as 

r-^.^uLai .,S...i. ' aivd not merely to the 

Cvidf'l'' ■ ^s character, condition, or for- 
ne. 4. Duress. 5. Physical impotence, 
\lvhich must exist at the time of the marriage 
and be incurable. 6. Consanguinity or af- 
finity within the prohibited degrees. 7. A 
prior subsisting marriage of either of the 
parties. The fifth and sixth are termed 
canonical, the remainder, civil, impediments. 
The distj.nction between the two is im- 
portant, — the latter rendering the mar- 
riage absolutely void, while the former- only 
renders it voidable. In the one case; it. is 
not necessary (though it is certainly ad- 
visable) to bring a suit to have nullity of 



the marriage ascertained and declared: it 
may be treated by the parties as no mar- 
riage, and will be so regarded in all judi- 
cial proceedings. In the other case, the 
marriage will be treated as valid and bind- 
ing until its nullity is ascertained and de- 
clared by a competent court in a suit in- 
stituted for that purpose; and this must be 
done during the lifetime of both parties: 
if it Is deferred until the death of either, 
the marriage vrill always remain good. But 
the effect of such sentence of nullity, when 
obtained, is to render the marriage iiuU and 
void from the beginning, as in the "case of 
civil impediments. 

For the origin and history of this distinc- 
tion between void" and voidable marriages,!, 
see 1 Bish. Mar. Div. &amp; Sep. § 252. 

A suit for nullity is usually prosecuted 
in the same court, and is governed by sub- 
stantially the same principles, as a suit for 
divorce; 2 Bish. Mar. Div. &amp; Sep. § 39. 

In Its consequences, a sentence of nullity 
differs materially from a divorce. The lat- 
ter assumes the original validity of the 
marriage, and Its operation is entirely pro- 
spective. The former renders the marriage 
void from the beginnirig, and nullifies all Its 
legal results. The parties are to be regarded 
legally as if no marriage- had ever taken 
place: they are single persons, if before 
they were single ; their issue are illegitimate ; 
and their rights of piToperty as between 
themselves are to be viewed as having never 
been operated upon by the marriage. Thus, 
the man lo^es all right to the property, 
whether real or personal, which belongs to 
the woman ; and the woman loses her right 
to dower; 2 Bish. Mar. Div. &amp; Sep. §§ 907, 
1597. 

A woman domiciled In England at the 
time of her marriage with a foreigner may, — 
after he has debarred her from claiming any 
relief in the courts of his (foreign) domicile 
by obtaining there a decree of nullity, — peti- 
tion the court of her own domicile to which 
she has reverted and obtain a decree there 
dissolving her marriage; [1913] P. 46. 

The jurisdiction where the ceremony was 
performed. creates the marriage and alone 
can annul it; Cummington v. Belchertown, 
149 Mass. 223, 21 N. E. 435, 4 L. R. A. 131; 
[1908] P. 46. Entire absence of cohabitation 
or -Incapacity to consummate marriage is 
groiimd for nullity ; [1905] P. 231. 

'Where a woman of 56 married a man of* 
69 and lost her pension by the marriage, a 
decree of nullity on the ground of his phys- 
ical incapacity was refused ; the court saving 
that as she had lost her pension by gaining a 
husband, she could not exchange a^ain ; 
Hatch V. Hatch, 58 Misc. 54, 110 N. Y Rupp. 
18. 

As to venereal diseases in the law of tfar- 
riage and divorce, see 37 Am. L. Rev. 226. 

A woman, upon a sentence of nullity, Is 
not entitled to permanent alimony; th6u|i 



NULLITY OF MAKRIAGE 



2385 



NUMBER 



the better opinion is that she Is entitled to 
alimony pendente Ute; 2 Bish. Mar. Div. &amp; 
Sep. §§ 907, 1597. 

See Aumont; Mareiage; Divoece; Burge, 
Col. Law, Renton &amp; Phillimore's ed. 

NULLIUS FILIUS (Lat.). The son of no 
one; a bastard. 

A bastard is considered nulUus films as 
far as regards . his right to inherit. But 
the rule of nulUm flUus does not apply in 
other respects, and has been changed by 
statute in most states so as to make him 
the child of his mother, in respect of in- 
heritance. 

The mother of a bastard, during its age 
of nurture, is entitled to the custody of her 
child, and is bound to maintain it; Com. v. 
Fee, 6 S. &amp; K. (Pa.) 255; People v. Landt, 
2 Johns. (N. Y.) 375; Wright v. Wright, 2 
Mass. 109; 4 B. &amp; P. 148. But see 5 Bast 
224, n. 

The putative father, too, is entitled to 
the custody of the child as against all but 
the mother; Cpm. v. Anderson, 1 Ashm. 
(Pa.) 55. And it seems that the putative 
' father may maintain an action, as if his 
child were legitimate, for marrying him 
without his consent, contrary to law; Mack- 
lin V. Taylor, Add. (Pa.) 212. See Bastard; 
Ghim); Father; "Mother; Putative Fa- 
ther. 

NULLUM ARBITRIUM (Lat.). In Plead- 
ing. The name of a plea to an action on an 
arbitration bond for not fulfilling the award, 
by which the defendant asserts that there is 
no award. 

NULLUM FECERUNT ARBITRIUM 
(Lat.). In Pleading. The name of a plea 
to an action of debt upon an obligation for 
the performance of an award, by which the 
defendant denies that he submitted to ar- 
bitration, Qtc. Bac. Abr. Ariitr. etc. (G). 

NULLUM TEMPUS ACT. The statute 3 
Geo. III. &lt;f. 16. See 32 Geo. IIL c. 58, and 
7 Will. IV, c. 3. It was so called because the 
right of the crown to sue, etc., was limited 
by it to sixty years, in contradiction to the 
maxim, Nullum tempus occurrit regi. 3 
Chitty, Stat. 63. 

NULLUM TEMPUS OCCURRIT REGI. 

See Limitations. 

NUMBER. A collection of units. 

In pleading, numbers must be stated truly 
when alleged in the recital of a record, writ- 
ten instrument, or express contract ; 4 Term 
314; Cro. Car. 262; 2 W. Bla. 1104. But in 
other cases it is not, in general, requisite 
that they should be truly stated; because 
they are not required to be strictly proved. 
If, for example, in an action of trespass 
the plaintiff proves the wrongful taking 
away of any part of the goods duly de- 
scribed in his declaration, he is entitled to 
BoTjv.— 150 



recover pro tanto; Bac Abr. Trespass (I 2) ; 
Lawes, PI. 48. 

And sometimes, when the subject to be 
described is supposed to comprehend a mul- 
tiplicity of particulars, a general description 
is sufficient. A declaration in trover alleg- 
ing the conversion of "a library of books," 
without stating their number, titles, or qual- 
ity, was held to be sufficiently certain; 3 
Bulstr. 31; Garth. 110; Bac. Abr. Trover 
(F 1) ; and in an action for the loss of 
goods by burning the plaintiff's house, the 
articles may be described by the simple de- 
nomination of "goods" or "divers goods" ; 1 
Kebl. 825; Plowd. 85, 118, 123; Cro. Eliz. 
837; 1 H. Bla. 284. The singular number 
may be included within the plural ; State v. 
Nichols, 83 Ind. 228, 43 Am. Rep. 66; Car- 
penter V. Lippitt, 77 Mo. 246; Blsh. Stat. 
Crimes § 213. 

NUMERATA PECUNiA (Lat). In Civil 
Law. Money counted or paid; money given 
in payment by count. See Pecunia Numee- 
ATA and PECtTNiA Non-Numeeata ; L. 3, 10, 
C. de non numerat. pecun. 

NUNC PRO TUNC (Lat. now forthen). 
A phrase used to express that a thing is done 
at one time which ought to have been per- 
formed at another. 

A nunc pro tunc entry, is an entry made 
now, of something which was actually previ- 
ously done, to have effect as of the former 
date. Its office is not to supply omitted ac- 
tion by the court, but to supply an omission 
in the record of action really had, but omit- 
ted through inadvertence or mistake. Per- 
kins V. Hayward, 132 Ind. 95, 31 N. B. 670. 

Leave of court must be obtained to act 
in legal proceedings nunc pro tunc; and 
this is granted to answer the purposes of 
justice, but never to do injustice. A judg- 
ment nunc pro tunc can be entered only 
when the delay has arisen from the aot of 
the court; 3 C. B. 970. See 1 V. &amp; B. 312; 
1 Moll. 462 ; 13 Price 604 ; Brooks v. Brooks, 
52 Kan. 562, 35 Pac. 215. But perhaps this 
rule is not always strictly enforced. Enter- 
ing a decree nunc pro tunc, and thereby re- 
stricting the time for appeal, is not prej- 
udicial error, where the defeated party suc- 
ceeds In perfecting his appeal; Monson v. 
Kill, 144 111. 248, 33 ' N. B, 43; Monson v. 
Jacques, 144 111. 651, 33 N. E. 757. 

A decree nunc pro tunc presupposes a de- 
cree allowed or ordered, but not entered 
through inadvertence of the court; or a de- 
cree under advisement when the death of a 
party occurs ; Cuebas y Arredondo v. Cuebas 
y Arredondo, 223 U. S. 376, 32 Sup. Ct. 277, 
56 L. Ed. 476. 

A plea puis darrein continuance may be 
entered nunc pro tunc after an intervening 
continuation, in some cases ; Rangely v. Web- 
ster, 11 N. H. 299 ; and lost pleadings may be 
replaced by new pleadings made nunc pro 
tunc; Chambers v. A^tor, 1 Mo. 327. Sef 



NUNC PRO TUNC 



2386 



NUNCUPATIVE WILL 



The Bayonne, 159 U. S. 687, 16 Sup. Ct. 185, 
40 L. Ed. 306. 

NUNCIATIO. In Civil Law. A formal 
proclamation or protest. It may be by acts 
(realis) or by words. Mackeldey, Civ. Law 
§ 237. Thus, nuncAatio novi opens was an 
injunction which one man could place on the 
■erection of a new building, etc., near him, 
until the case was tried by the prsetor. Id.; 
Calv. Lex. An information against a crimi- 
nal. Calv. Lex.. 

NUNCIO. The name given to the pope's 
ambassador. Nuncios are ordinary or ex- 
traordinary ; the former are sent upon usual 
missions, the latter upon special occasions. 

NUNCIUS. In International Law. A mes- 
senger; a minister; the pope's legate, com- 
monly called a nundo. See Legate. 

NUNCUPATIVE WILL. An oral will, de- 
clared by a testator in ewtr.emis, or under 
circumstances considered equivalent thereto, 
before witnesses, and afterwards reduced te 
writing. 4 Kent 576; 2 Bla. Com. 500; 1 
Jarm. ViUs, 6th Am. ed. *78. 

When a man lieth languishing for fear of 
sudden death, dareth not stay the writing 
of his testament, and therefore he prayeth 
his curate and others to bear witness of his 
last will, and declareth by word what his 
last will is. Perk. Conv. § 476; Bac. Abr. 
305; Male's Case, 49 N. J. Eq. 266, 24 Atl. 
370. 

In early times this kind of will was very 
common, and before the statute of "frauds, 
by which it was virtually aboliished, save 
In the case of soldiers and sailors, was of 
equal efficacy, except for lands, tenements, 
and hereditaments, with a written testament. 
Such wills are subject to manifest abuses and 
hy Stat. 1 Vict. c. 26, §§ 9, 11 (preceded by 
1 Will. IV. c. 20), the privilege is confined 
to soldiers in actual service, and sailors at 
sea, and extends only to personal estate. 
Similar provisions have been enacted, in Mas- 
sachusetts, Minnesota, New York, Rhode 
Island, Virginia, West Virginia, and Mon- 
tana. In Georgia, the statute embraces both 
real and personal property. In California 
and the Dakotas, the decedent must have 
. been in actual military service, or at sea, 
and in immediate fear of death. In the 
other states, nuncupative wills by persons 
in extremis are still recognized, subject to 
restrictions as to amount of property be- 
queathed, similar to those of the English 
statute of frauds. 

Statutes relating to nuncupative wills are 
strictly construed; 2 Phillim. 194; Morgin 
V. Stevens, 78 111. 287 ; Appeal of Taylor, 47 
TPa. 31; Lucas v. Goff, 33 Miss. 629. The 
testator must be in extremis, overtaken by 
violent sickness, in contemplation of death, 
and without time to make a written will; 1 
Addams 389; Prince v. Hazleton, 20 Johns. 



(N. .Y.) 502, 11 Am. Dec. 307; Werkheiser 
V. Werkheiser, 6 W. &amp; S. (Pa.) 184; Scaife 
V. Emmons, 84 Ga. 619, 10 S. E. il097, 20 Am. 
St. Rep. 383 ; but see Johnston v. Glasscock, 
2 Ala. 242; Harrington v. Stees, 82 III. 50, 
25 Am. Rep. 290; the deceased must have 
clearly intimated by word or sign to those 
present that .he intended to make the will; 
Dockum V. Robinson, 26 N. H. 372; Babl- 
heau's Heirs v. Le Blanc, 14' La. Ann. 729 ; 
Biddle v. Biddle, 86 Md. 630; Morgan v. Ste- 
vens, 78 111. 287 ; Mulligan v. Leonard, 46 la. 
694 ; Smith v. Stfiith, 63 N. C. 637 ; testamen- 
tary capacity must be most clearly proved; 
Dorsey v. Sheppard, 12 Gill. &amp; J. 192, 37 Am. 
Dec. 77; Morgan v. Stevens, 78 111. 287. In 
"actual military service," is held to mean 
dufing warfare, and while on an expedi- 
tion ; 3 Curt. 531 ; Leathers v. Greenacre, 53 
Me. 561; but this rule has been somewhat 
freely treated; Gould v. Safford's Estate, 39 
Vt. 498. Sailors must be serving on shipboard ; 
2 Curt. 339 ; Warren v. Harding! 2 R. I. 133. 
The term mariner applies to every one in the 
naval or mercantile service ; Ex parte Thomp- 
son, 4 Bradf. (N. Y.) 15,4. See note to Sykes 
V. Sykes, 20 Am. Dec. 44; Male's Case, 49 
N. J. Eq. 266, 24 Atl. 370. See Miutabt 
Testament. 

NUNOIN&gt;E (Law Lat.): In Civil and Old 
English Law. Fair or fairs. Dion. Halicar- 
nass. lib. 2, p. 98; Law Fr. &amp; Lat. Diet 
Hence Nundination, traffic at fairs. 

NUNQUAIW INDEBITATUS (Lat never 
indebted). In Pleading. A plea to an action 
of indebitatus assumpsit, by which the de- 
fendant asserts that he is not indebted to the 
plaintiff. McKelv. PI. 31 ; 6 C. &amp; P. 545; 1 
M. &amp; W. 542; 1 Q. B. 77. 

In England, this plea has been substituted 
for n.l debet, g. v., as the general issue In 
debt on a simple contract 

NUNTIUS, NUNCIUS. In Old English 
Practice. One who made excuse for absence 
of one summoned. An apparitor, beadle, or 
sergeant. Cowell. A messenger or ' legate : 
e. g. pope's nuncio. Jacob, L. Diet Essom- 
ator was sometimes wrongly used for nutif 
tins in the first sense. Bracton, fol. 345, § 2. 

NUPER OBIIT (Lat he or she lately died), 
in Practice. The name of a writ which in 
the English law lay for a sister coheiress 
dispossessed by her coparcener of lands and . 
tenements whereof- their father, brother, or 
any common ancestor died seized of an es- 
tate in fee-simple. Fltzh. N. B. 197. Abolish- 
ed in 1838. 

NURSE. Statutes have been passed in 
many states providing for the regulation 
and registration of trained nu,rses. See 
also Hospital ; Chaeitable Uses. 

NURSERY. On a sale of peach trees by 
a nurseryman which turned out to be the 



NURSERT 



2387 



NURSERY 



wrong variety, it was lield, reversing the 
court below, that the real intent of a guaran- 
tee in the case of fruit trees, though not 
not stated, is that the tree will produce a 
certain variety of fruit, 'and this cannot be 
determined until the tree begins bearing. 
Suprezae Coutt of Washington (newspaper 



of February, 1914). See Meastjee of Dam- 
ages. 

NURTURE. The act of taking care of 
children and educating them. See Child. 

NURUS (Lat). A daughter-in-law. Dig. 
50. 16. 50. 



O. K. 



2388 



OATH 



o 



0. K. These letters, followed by the sig- 
nature of the person writing them, written 
on an order for goods, held sufficient con- 
tract to pay for them ; Penn Tobacco Co. v. 
Leman, 109 Ga. 428, 34 S. E. 679. Mere 
"O. K." indorsements on bills by architects 
are sufficient compliance with provisions of 
contract for payments on their written cer- 
tificates; Getchell &amp; M. L. Co. v. Peterson, 
124 la. 599, 100 N. W. 550. A stipulation 
waiving a jury filed in court, signed by 
counsel after the characters O. K., is an 
agreement ; Citizens' Bank of Wichita v. 
Farwell, 56 Fed. 571, 6 C. C. A. 24. 

0. Nl. In the exchequer, when the sheriff 
'made up his account for issues, amercia- 
ments, etc., he marked upon each head O. Ni., 
which denoted oneratur, misi habeat sufflcien- 
tem exonerationem, and presently he be- 
came the king's debtor, and a debet was set 
upon his head; whereupon the parties para- 
vaile became debtors to the sheriff, and were 
discharged against the king, etc. ; 4 Inst. 116. 
But sheriffs now account to the commission- 
ers for auditing the public accounts ; Whart. 
Lex. 

OATH. An outward pledge given by the 
person taking it that his attestation or prom- 
ise is made under an immediate sense of his 
responsibility to God. Tyler, Oaths 15. 

The term has been variously .defined : as, 
"a solemn invocation of the vengeance of 
the Deity upon the witness if he do not de- 
clare the whole truth, so far as he knows 
it;" 1 Stark. Ev. 22; or, "a religious assev- 
eration by which a person renounces the 
mercy and imprecates the vengeance of 
Heaven if he do not speak- the truth ;" 2 
Leach 482; or, as "a religious act by which 
the party invokes God not only to witness 
the truth and sincerity of his promise, but 
also to avenge his imposture or violated 
faith, or, in other words, to punish his per- 
jury if he shall be guilty of it ;" 10 Toullier, 
n. 343; Puffendorfif, b. 4, c. 2, § 4. The es- 
sential idea of an oath would seem to' be, 
, however, that of a recognition o£ God's au- 
thority by the party taking it, and an under- 
taking to accomplish the transaction to 
which it refers as required by his laws. 

In its broadest sense, the term is used to 
include all forms of attestation by which a 
party signifies that he is bound in conscience 
to perform the act faithfully and truly. In 
a more restricted sense, it excludes all those 
forms of attestation or promise which are 
not accompanied by an imprecation. 

Assertory oaths are those required by law 
other than in judicial proceedings and upon 
induction to office : such, for example, as 
custom-house oaths. 

Extror judicial oaths are those taken with- 



out authority of law. Though binding in 
foro consdentiw, they do not, when false, 
render the party liable to punishment for 
perjury. 

Judicial oaths are those administered in 
judicial proceedings. 

Promissory or offlcial oaths are oaths tak- 
en, by authority of law, by which the party 
declares that he will fulfil cert^ain duties 
therein mentioned : as, the oath which an 
alien takes, on becoming naturalized, that 
he will support the constitution of the Unit- 
ed States : the oath which a judge takes that 
he will perform the duties of his office. The 
breach of this does not involve the party in 
the legal crime or punishment of perjury; 
State V. Dayton, 23 N. J. L. 49, 53 Am. Dec. 
270. Where an appointee neglects to take 
an oath of office when required by statute 
to do so, he cannot be considered qualified, 
nor justify his doings as an officer; Johns- 
ton V. Wilson, 2 N. H. 202, 9 Am. Dec. 50. 

Qualified oaths are circumstantial oaths. 
Rap. &amp; L. Diet. 

The form of administering the oath may 
be varied to conform to the religious belief" 
of the individual, so as to make it binding 
upon his conscience; 4 Bla. Com. 43; 1 
Whart. Bv. §§ 386-8; Com. y. Buzzell, 16 
Pick. (Mass.) 154; McKinney v. People, 2 
Gilman (111.) 540, 43 Am. Dec. 65; 7 111. Ry. 
&amp; M. 77. The most common form is upon 
the gospel, by taking the book in the hand: 
the words commonly used are, "Tou do 
swear that," etc., "so "help you God," and 
then kissing the book; 9 0. &amp; P. 137. The 
oath was in common use long prior to the 
Christian era ; Willes 545, 1744 ; the oath and 
Christianity became associated during the 
reign of Henry VIII. in England; 3 Robert- 
son's Charles V. 257. The origin of this 
oath may bek traced to the Roman law; Nov. 
8, tit. 3; Nov. 74, cap. 5; Nov. 124, cap. 1. 
In ancient times a Bible containing the Gos- 
pels was placed upon a Stand in view of the 
prisoner. The jurors placed their hands up- 
on the book, and then the accused had a full 
view of "the peer" who was to try him. 
This was called the "corporal oath" because 
the hand of the person sworn touched the 
book. Probably, out of reverence, the book 
may have been kissed sometimes, as a Catho- 
lic priest now kisses it in a mass ; but it is 
doubtful if kissing the book was ever essen- 
tial to the validity of the "corporal oath"; 
22 Law Mag. &amp; Rev. 59. 

The terms "corporal oath" and "solemn 
oath" are synonymous, and an oath taken 
with the uplifted hand is properly described 
by either term in an indictment for perjury ; 
Jackson v. State, 1 Ind. 184. In New Eng- 
land, New York, and in Scotland the gospels j 



OATH 



2389 



OATH 



are not generally used, but the party taking 
the oath holds up his right hand and re- 
peats the words here given; 1 Leach 412, 
498, 

Kissing the book has been abolished by 
statute (1895) in Pennsylvania. 

Where a justice asks affiant if he swears 
to the affidavit, and he replies that he does, 
the oath is sufficient though he does not hold 
up his hands and swear ; Dunlap v. Clay, 65 
Miss. 454, 4 South. 118. 

Another form is by the witness or party 
promising holding up his right hand while 
the officer repeats to him, "You do swear by 
Almighty God, the searcher of hearts, that," 
etc., "and this as you shall answer to God 
at the great day." 

In another form of attestation, commonly 
called an affirmation (g. v.),- the officer re- 
peats, "You do solemnly, sincerely, and truly 
declare and affirm that;" which is the form 
prescribed in England by 8 Geo. I. ch. 6. 

A general oath that the evidence "shall 
be the truth, the whole truth, and nothing 
but the truth," etc., is all that is necessary 
for a witness who testifies to the signing of 
an instrument in his presence, and trans- 
lates the language of such instrument for 
the benefit of the jury ; Krewson v. Purdom, 
13 Or. 563, 11 Pac. 281. 

A Jew is sworn on the Pentateuch, or Old 
Testament, with his head covered; Stra. 821, 
1113; a Mohammedan, on the Koran; 1 
Iieach 54; a Gentoo, by touching with his 
hand the foot of a Brahmin or priest of Ms 
religion; a Brahmin, by touching the hand 
of another such priest; Wils. 549; 1 Atk. 
21; a Chinaman, by breaking a china saucer; 
1 C. &amp; M. 248. See State v. Chyo Chiagk, 92 
Mo. 395, 4 S. W. 704. 

After a witness has. taken the oath ac- 
cording to the custom and religion of his 
country, it is not error to require him to 
take ■ the statutory oath ; State v. Gin Pon, 
16 Wash. 425, 47 Pac. 961. 

The requirement of an "oath" as used in 
any act or resolution of congress shall be 
deemed complied with by making affirma- 
tion ia the judicial form ; tJ^ S. R. S. § 1. 

The form and time of administering oaths, 
as well as the person authorized to adminis- 
ter, are usually fixed by statute. See Her- 
man V, Herman, 4 Wash. C. C. 555, Fed. Gas. 
No. 6,407 ; U. S. v. Bailey, 9 Pet. (U. S.) 238, 
« L. Ed. 113;. Oaks v. Rodgers, 48 Cal. 197; 
Arnold V. Middletown, 41 Conn. 206. The ad- 
ministering of unlawful oaths is an ofCence 
against the government; Whart. Lex. 

By tjie Promissory Oaths Act (31 &amp; 32 
Vict. c. 72) a number of unnecessary oaths 
have been abolished, and declarations substi- 
tuted. The same act provides a new form 
of the oath of allegiance, and forms of a 
judicial oath and an official oath to be taken 
by particular officers. See also Promissory 
Oaths Act of 1871. 



In Arkansas, California, Florida, Indiana, 
Iowa, Kansas, Michigan, Minnesota, Nebras- 
ka, Nevada, New York, Ohio, Oregon, and 
Wisconsin there are constitutional provisions 
intended to exclude any religious test for the 
competency of witnesses. 

The Bible is not an indispensable requi- 
site in the administration of an oath; Peo- 
ple V. Cook, 8 N. Y. 67, 59 Am. Dee. 451. 

See Kissing the Book. 

OATH AGAINST BRIBERY. One which 
could have been administered to a voter at 
an election for members of parliament. 
Abolished in 1854. Whart. Lex. 

OATH OF CALUMNY. In Civil Law. An 

oath which a plaintiff was obliged to take 
that he was not actuated by a spirit of 
chicanery in commencing his action, but 
that he had tona fide a good cause of action. 
Pothier, Pand. Ub. 5, tt. 16, 17, s. 124. This 
oath is somewhat similar to our affidavit 
of a cause of action. See Dunl. Adm. Pr. 
289, 290; Jub amentum CAiuMNLa;. 

OATH DECISORY. In Civil Law. . An 

oath which one of the parties defers or re- 
fers back to the other for the decision af the 
cause. 

It may be deferred in any kind of civil 
contest whatever, in questions of possession 
or of claim, in personal actions, and in real. 
The plaintiff may defer the oath to the de- 
fendant whenever he conceives he has not 
sufficient proof of the fact which is the 
foundation of his claim ; and in like man- 
ner the defendant may defer it to the plain- 
tiff when he has not sufficient proof of his 
defence. The person to whom the oath is 
deferred ought either to take it or refer it 
back ; and if he will not do either, the cause 
should be decided against him. Pothier, Obi. 
pt. 4, c. 3, s. 4. 

The decisory oath has been practically 
adopted in the district court of the United 
States for the district of Massachusetts ; and 
admiralty causes have been determined in 
that cburt by the oath decisory. But the 
cases in which this oath has been adopted 
have been where the tender has been accept- 
ed; and no case is known to have occurred 
there in which the oath has been refused 
and tendered back to the adversary. Dunl. 
Adm. Pr. 290. 

It was familiar to the Roman tribunals, 
and could be administered by the court to 
either party for the satisfaction of his con- 
science, when in douBt 3 Greenl. Ev., Lewis 
ed. § 412. 

OATH EX OFFICIO. The oath by which 
a clergyman charged with a criminal of- 
fence was formerly allowed to swear him- 
self to be innocent; also the oath by which 
the compurgators swore that they believed 
in his Innocence. 3 Bla. Com. 101, 447j Moz. 
&amp; W. 



OATH IN LITEM 



2390 



OBEDIENCE 



OATH IN LITEM. An oath which in the 
civil law was deferred to the complainant as 
to the value of the thing in dispute, on fail- 
ure of other proof, particularly when there 
was a fraud on the part of the defendant 
and he suppressed proof in his possession. 
See Greenl. Ev.§ 348; 1 Bq. Cas. Abr. 229; 
Herman v. Drinkwater, 1 Greenl. (Me.) 27; 
Sneider v. Geiss, 1 Teates (Pa.) 34. 

In general, the oath of the party cannot, 
by the common law, be received to establish 
his claim, but is admitted in two classes of 
cases : first, where it has been already prov- 
ed that the party against whom it is offered 
has been guilty of some fraud or other tor- 
tious or unwarrantable act of intermeddling 
with the complainant's goods, and no other 
evidence can be had of the amount of dam- 
ages. See Smiley v. Dewey, 17 Ohio, 156; 
as, for example, where a trunk of goods was 
delivered to a shipmaster at one port to be 
carried to another, and on the passage he 
broke the trunk open and rifled it of its 
contents, in an action by the owners of the' 
goods against the shipmaster, the facts above 
mentioned having been proved aliunde, the 
plaintiff was held a competent witness to 
testify as to the contents of the trunk ; Her- 
man v. Drinkwater, 1 Greenl. (Me.) 27. And 
see Clark v. Spence, 10 Watts (Pa.) 335; 
1 Greenl. Ev. § 348. Second, the oath in litem 
is also admitted on the ground of public 
policy where it is deemed essential to the 
purposes of justice; Tayloe v. Riggs, 1 Pet. 
(U. S.) 596, 7 L. Ed. 275; 6 Mood. 137. But 
this oath is admitted only on the ground of 
necessity. An example may be mentioned of 
a case where a statute can receive no exe- 
cution unless the party interested be admit- 
ted as a witness; U. S. v. Murphy, 16 Pet. 
(U. S.) 203, 10 L. Ed. 937. Parties in inter- 
est are now everywhere, and in most cases, 
permitted to testify. 

OATH PURGATORY. An oath by which 
one destroys the presumptions which were 
against him, for he is then said to purge 
himself, when he removes the suspicions 
which were 'against him : as, when a man is 
in contempt for not attending court as a wit- 
ness, he may purge himself of the contempt, 
by swearing to a fact which is an ample 
excuse. See Puegation. 

OATH SUPPLETORY. In Civil and Ec- 
clesiastical Law. An oath required by the 
judge from either party in a cause, upon 
half-proof already inade, which being joined 
to half-proof, supplies fhe evidence required 
to enable the judge to pass upon the subject. 
See 3 Bla. Com. 270. 

OBEDIENCE. The performance of a com- 
mand. 

Officers who obey the command of their 
superiors, having jurisdiction of the subject- 
matter, are not responsible for their acts. 
A sheriff may, therefore, justify a trespass 



under an execution, when the court has ju- 
risdiction, although irregularly issued; 3 
Chitty, Pr. 75 ; Hamm. N. P. 48. 

A child, an apprentice, a pupil, a mariner, 
and a soldier owe respectively obedience to 
the lawful commands of the parent, the 
master, the teacher, the captain of the ship, 
and the military officer having command; 
and in case of disobedience submission may 
be enforced by correction. See Assatjlt; 

COBEBCTION. 

OBEDIENTARIUS. A monastic officer. 
Du Gauge. See 1 Poll. &amp; Maitl. 417. 

OBEDIENTIAL OBLIGATION. See Obli- 
gation. 

OBIT. That particular solemnity or office 
for the dead which the Roman Catholic 
church appoints to be read or performed 
over the body of a deceased member of that 
communion before interment ; also, the office 
which upon the anniversary of his death was 
frequently used as a commemoration or ob- 
servance of the day.- Dy. 313. 

OBITER DICTUIU. See Dictum. 

OBJECT. That which is perceived, 
known, thought of, or signified; that toward 
which a cognitive act is directed. Cent. Diet. 
The term includes whatever may be present- 
ed to the mind as well as to the senses; 
whatever also is acted upon or operated up- 
on affirmatively or intentionally influenced 
by anything done, moved, or applied thereto 5 
Wells V. Shook, 8 Blatchf. 257, Fed. Cas. No. 
17,406; it may be used as having the sense 
of effect; Harland v. Territory, 3 Wash. T. 
131, 13 Pac. 453; and for all practical pur- 
poses the words subject and object are syn- 
onymous; id. But the subject of action can- 
not be the object of action; the latter is the 
remedy demanded, the relief prayed for, and 
is no part of the subject of action or the 
causes of action ; Scarborough v. Smith, 18 
Kan. 406. 

OBJECTION. Where evidence is objected 
to at the trial, the nature of the objectiolis 
must be distinctly stated, whether an ex- 
ception be entered on the record or not, and, 
on either moving for a new trial on account 
of its improper admission, or on arguing the 
exception, the counsel will not be permitted 
to rely on any other objections than those 
taken at nisi prius; 3 Tayl. Ev., Chamb. ed. 
§• 1881 d; objections must state the specific 
ground; Carroll v. Benicia, 40 Cal. 390; 
Forbing v. Weber, 99 Ind. 588; Massenberg 
V. Denison, 107 Fed. 18, 46 C. C. A. 120; and 
counsel cannot change his ground on the 
argument in the appellate court; Tooley v. 
Bacon, 70 N. T. 34 ; general objections, such 
as irrelevant, incompetent, and the like, are 
said to be too general in their terms ; Peck 
V. Chouteau, 91 Mo. 138, 3 S. W. 577, 60 Am. 
Rep. 236; Bundy v. Hyde, 50, N. H. 121; 
the general objection that evidence is incom- 



OBJECTION 



2391 



OBLIGATIO 



pptent, Irrelevant and immaterial is suffi- 
cient when the reason for the objection is 
readily discernible. But where the ground 
for the objection is not suggested thereby, it 
win not avail ; Sparks v. Oklahoma, 146 Fed. 
371, 76 C. C. A. 59i; evidence' to which such 
objections are made will be held in the ap- 
pellate court to have been properly admitted, 
if admissible for any purpose; Voorman v. 
Voight, 46 Cal. 397; one who has not ob- 
jected to evide.nce when Introduced is not en- 
titled to ha*e the court instruct the jury to 
disregard it ; Maxwell v. R. Co., 85 Mo. 106 ; 
nor will an objection be heard if made for 
the first time on the motion for a new trial ; 
Harvey v. State, 40 Ind.'516; or in the ap- 
pellate court; Clark v. Fredericks, 105 U. 
S. 4, 26 L. Ed. 938! 

When testimony was received without ob- 
jection, the court should not sign a bill of 
exceptions ; if it does, it will be disregarded 
above; Duvall's Ex'r v. Darby, 38 Pa. 56; 
the court may refuse to strike out the an- 
swer to a question asked a witness where no 
objection was made to it when it was asked ; 
Bailey v. Warner, 118 Fed. 395, 55 C. C. A. 
329. 

Ordinarily, where an objection has been 
made and overruled, it is not necessary to 
repeat it to each succeeding question open 
to the same objection ; Thomp. Trials § 705. 

Objecting to a judge's instruction is said 
to be regarded' as having the same force as 
excepting; Eisner v. K. &amp; L. of Honor, 98 
Mo. 640, 11 S. W. 991. See Bill or Excep- 
tions. 

Where objections, have been twice pre- 
sented and regularly allowed, it is not neces- 
sary that they should be renewed at the 
termination of the testimony of a witness; 
Bram v. U. S., 168 U. S. 532, 18 Sup. Ct. 183, 
42 L. Ed. 568. 

OBJECTS OF A POWER. The persons 
who are intended to be benefited by the dis- 
tribution of property settled subject to a 
power. 

OBJURGATRICES. - Scolds or unquiet 
women punished with the cucking stool 
(9. v.). 

OBLATE ROLLS. Chancery Rolls (1199- 
1641), called also Fine Rolls, containing rec- 
ords of payments to the king by way of oblate 
or fine for the grant of privileges, or by way 
of amercement for breach of duty. 2 
Holdsw. Hist. B. L. 141. 

OBLATIO (Lat). In Civil Law. A tender 
of money in payment of debt made by debtor 
to creditor. L. 9, C. de solut. Whatever is 
offered to the church by the pious. Calv. 
Lex. ; Vicat, Voc. Jur. 

OBLATION. In Ecclesiastical Law. Offer- 
ings ; obventions. See Obventions. 

OBLIGATIO. In Roman Law. A legal 
bond which obliges us to the performance of 



something in accordance with the law of the 
land. Ortolan, Inst. 2, § 1179. 

It corresponded nearly to our word con- 
tract Justinian says, "OhUgatio est juris 
vinculum quo necessitate adstringinuur aly 
oujus solvendm rei, secundum nostrm civita- 
tis jura." Pr. J. 3. 13. 

The Romans considered that obligations 
derived their validity solely from positive 
law. At first the only ones recognized were 
those established in special cases In accord- 
ance with the forms prescribed by the strict 
jus civiUs. In the course of time, however, 
the prsetorian jurisdiction, In mitigation of 
the primitive rigor of the law, introduced 
new modes of contracting obligations and 
provided the means of enforcing them: 
hence the twofold division made by Justin- 
ian of oiligationeg civiles and obligationes 
prwtoriiB. Inst 1. 3. 13. But there was 
a third claSs, the obUgationes naturales, 
which derived their validity from the law 
of nature and nations, or the natural reason 
of mankind. These had npt the binding 
force of the other classes, not being capable 
of enforcement by action, and are, therefore, 
not noticed by Justinian in his classifica- 
tion; but they had, nevertheless, a certain 
efficacy even in the civil law: for instance, 
though a debt founded upon a natural ob- 
ligation could not be recovered by an action, 
y6t if it was voluntarily paid by the debtor 
he could not recover it back, as he might do 
in the case of money paid by mistake, etc., 
where no natural obligation existed. L. 38, 
pr. D. 12. 6. And see Ortolan 2, § 1180. 

The second classification of obligations 
made by Justinian has regard to the way 
in which they arise. They were, in this 
aspect, either ex contractu or quasi ex con- 
tractu, or ex ntaleflcio or quasi ex malefloio; 
Inst. 2. 3. 13. These will be discussed sepa- 
rately. 

Obligationes ex contractu, those founded 
upon an express contract, are again sub- 
divided into four classes, with reference to 
the mode in which they are contracted. The 
contract might be entered into re, verbis. 
Uteris, or consensu. 

A contract was entered into re by the 
actual transfer of a tiling from one party 
to the other. Though in such cases the un- 
derstanding of the parties as to the object of 
the transfer, and the conditions accompany- 
ing it, formed an essential part of the con- 
tract, yet it was only by the actual delivery 
of the thing that the contract was generated. 
The only contracts which could be entered 
into in this way were those known to our 
law as Bailments, — a term derived from the 
French word Miller, to deliver, and evident- 
ly pointing to the same characteristic fea- 
ture In the translation which the Romans 
indicated by the word re. 'these were the 
mutuum, or loan of a thing to be consumed 
in the using and to be returned in kind, the 
commodatum, or gratuitous loan of a thing 



OBLIGATIO 



2392 



OBLIGATIO 



to be used and returned, the depositum, or 
delivery of a thing to be kept In safety for 
the benefit of the depositor, and the pignus, 
or delivery of a thing in pledge to a creditor, 
a^s security for his debt. See Muttjum ; Com- 
MODATUM ; Depositum ; Pignus ; Ortolan, 
Inst. § 1208; Mackeldey, Eom. Recht § 396. 
Besides the above named contractus reales, a 
large class of contracts which had no special 
names, and were thence called contractus 
innominati, were included under this head, 
from the fact that they, like the former, 
gave rise to the ■actio prwsoriptis verMs. 
Some of these were the contracts of ex- 
change, of mutual compromise, of doubtful 
or contested claims (somewhat resembling 
our accord and satisfaction), of factorship, 
etc. See Mackeldey § 409. 

Contracts were entered Into vertis, by a 
formal Interrogation by one party and re- 
sponse by the other. The interrogation was 
called stipwlatio, and the party making it, 
reus stipulancU. The response was called 
promissio, and the respondent, reus promit- 
tendi. The contract itself, consisting of the 
interrogation and response, was often called 
stipuldtio. In the time of the earlier jurists, 
the stipulation could only be entered into by 
the use of certain formulary words by the 
parties : as, for instance, Spondes ? do you 
promise? Spondee, I promise; Daiis? will 
you give? Dabo, I will give; Fades? will 
you do this? Fadam, I will do it, etc., etc. 
But by a constitution of the emperor Leo, 
A. D. 469, the obligation to use these particu- 
lar words was dorfe away, and any words 
which expressed the meaning of the parties 
were allowed to create a valid stipulation, 
and any language understood by the par- 
ties might be used with as much effect as 
Latin. Such contracts were called verbis, 
because their validity depended entirely up- 
on the use of the words. The mere agree- 
ment of the parties without using the ques- 
tion and response could not beget a stipula- 
tion ; and, on the other hand, if the question 
and response had been used, the obligation 
was created although there might be an ab- 
sence of consent. In this latter case, how- 
ever, equitable relief would be granted by 
the prsetor ; Ortolan, Inst. § 1250. Stipula- 
tions, and, indeed, all other forms of con- 
tracts, might be made either pure, i. e. ab- 
solutely, or in diem, i. e. to take effect at a 
future day, or sub conditione, i. e. condition- 
ally. But some kinds of conditions, such as 
those physically impossible, were inadmis- 
sible, and invalidated the contract; while 
others, such as those which were^ absurd, 
were themselves invalidated, and the con- 
tract was considered as having been made 
absolutely. Mackeldey §§ 415-421; Ortolan, 
Inst. § 1235 ; Inst. 3. 13. 

Contracts entered into Uteris were obso- 
lete in the reign of Justinian. In the earlier 
days of Roman jurisjprudenoe, every citizen 



kept a private account-book. If a creditor, 
at the request of his debtor, entered in such 
book his charge against his debtor, such en- 
try, in pursuance of the request, constituted 
not merely evidence of a contract, but the 
contract Itself. This was the contract form- 
ed Uteris, in writing. The debtor, on his 
part, might also make a corresponding entry 
of the transaction in his own book. This 
was in fact; expected of him, and was gen- 
erally done; but it seems not to have been 
necessary to the validity of the contract. 
The entry was made' In the form of a ficti- 
tious payment; it was allowable only In 
pecuniary transactions; it must be simple 
and unconditional, and could not be made to 
take effect at a future day. The charge 
might be made against the original debtor, 
a re in personam, or against a third person 
who agreed to take his place, a persona m 
personam. This species of literal contract 
was called nomina, nomina transcriptitia or 
■acceptilatio et expensilatio. Ortolan, Inst. § 
1414. This species of contract seems never 
to have been of great importance; they had 
disappeared entirely before the time of Jus- 
tinian; Hadley, Rom. Law 216. 

There were two other literal contracts 
known to the early jurisprudence, called 
syngraphia and chirographiaj but these even 
In the times of Gaius had become so nearly 
obsolete, that very little Is known about 
them. All these, it must be borne in mind, 
were contracts themselves, not merely evi- 
dences of a contract; and this distinguishes 
them from the Instruments of writing in use 
during the latter ages of the civil law. Orto- 
lan, Inst. § 1414 ; Mackeldey § 422. 

Contracts were made consensu, by the 
mere agreement of the contracting parties. 
Although such agreement might be proved 
by a written instrument, as well as in other 
ways, yet the writing was only evidence of 
the contract, not the contract itself. This 
species of consensual contracts are emptio 
et venditio, or sale, locatio et conductio, or 
hiring, emphyteusis, or conveyance of land 
reserving a rent, sodetas, or partnership,, 
and mandatum, or agency. See these words ; 
Hike. 

ObUgationes quasi ex contractu). In the 
Roman law, persons who had not In fact 
entered Into a contract were sometimes- 
treated as if they had done so. Their legal 
position in such cases had considerable re- 
semblance to that of the parties to a con- 
tract, and is called an obUgatio quasi ea^ 
contractu. Such an obligation was engen- 
dered in the cases of negotiorum gestio, or 
unauthorized agency, of communio inddens, 
a sort of tenancy in common not originating 
In a contract, of solutio indebiti, or the pay- 
ment of money to one not entitled to It, of 
the tutela and cura, resembling the relation 
of guardian and ward, of the additio hered- 
itatis and agnitio bonorum possessionis, or 
the acceptance of an heirship, and many oth- 



OBLIGATIO 



2393 



OBLIGATION 



ers. Some Include In this class the consti- 
tutio dotis, settlement of a dower. Ortolan, 
Inst. § 1522 ; Mackeldey § 457. 

OMigationes ex maleflcio or ex delicto. 
The terms malefleium, delictum, embraced 
most of the injuries which the common law 
denominates torts, as well as others which 
are now considered crimes. This class in- 
cludes furtum, theft, rapina, robbery, dam- 
num, or injury to property, whether direct or 
consequential, and injuria, or injury to the 
person or reputation. The definitions here 
given of danmum and injuria are not strict- 
ly accurate, but will serve to convey an idea 
of the distinction between them. All such 
acts, from the instant of their commission, 
rendered the perpetrator liable for damages 
to the party injured, and were, therefore, 
considered to originate an obligatio. Inst. 4. 
1 ; Ortolan, Inst. § 1715. 

Oiligationes quasi ex delicto. This class 
embraces aU torts not coming under the 
denomination of deliota and not having a 
special form of action provided for them 
by law. They differed widely in character, 
and at common law would in some cases 
give rise to an action on the case, in others 
to an action on an implied contract. Or- 
tolan, Inst. § 1781. 

OTiligationes ex variis causarum Hguris. 
Although Justinian confined the divisions of 
obligations to the four classes which have 
been enumerated, there are many species of 
obligations which cannot properly be reduced 
within any of these classes. Some authori- 
ties have, consequently, established a fifth 
class, to receive the odds and ends which 
belonged nowhere else, and have given to 
this class the above designation," borrowed 
from Gaius,- 1. 1, pr. § 1, D. 44, 7. See Mac- 
keldey § 474. See, generally, Hadley, Kom. 
Law 209, etc. 

OBLIGATION (from Lat. oiligo, ligo, to 
bind). A duty. 

A tie which binds us to pay or do some- 
thing agreeably to the laws and customs 
of the country in which th6 obligation is 
made. Inst. .S, 14. 

"The relation which exists between two 
persons of whom one has a private and 
peculiar right (that is not a mere public or 
official right, or a right Incidental to owner- 
ship or a family relation) to control the 
other's action by calling upon him to do or 
forbear some particular thing." Poll., 
Contr. 4. 

The obligation is the bond or chain with 
which the law joins together persons or 
groups of persons in consequence of certain 
voluntary acts. The acts which have the ef- 
fect of attracting an obligation are chiefly 
those classed under, the heads of Contract 
and Delict, of agreement and crime. Maine, 
Anc. Law 323. 

A bond containing a penalty, with a con- 
dition annexed, for the payment of money, 



performance of covenants, or the like, and 
which differs from a bill, which Is generally 
without a penalty or condition, though it 
may be obligatory. Co. Litt. 172. 

A deed whereby a man binds himself un- 
der a penalty to do a thing. Com. Dig. 06- 
ligation (A) ; Taylor v. Glaser, 2 S. &amp; R. 
(Pa.) 502; Denton v. Adams, 6 Vt. 40; Dem- 
ing V. Bullitt, 1 Blackf. (Ind.) 241; Cantey 
V. Duren, Harp. (S. C.) 434; Harman v. 
Harman, Baldw. 129, Fed. Gas. No. 6,071. 
The word has a very broad and comprehen- 
sive legal signification and embraces all in- 
struments of writing, however informal, 
whereby one party contracts with another 
for the payment of money or the delivery of 
specific articles. State v. Campbell, 103 N. 
C. 344, 9 S. B. 410; Morrison v. Lovejoy, 6 
Minn. 353 (Gil. 224) ; Sinton v. Carter Co., 
23 Fed. 535. 

An absolute obligation is one which gives 
no alternative to the obligor, but requires 
fulfilment according to the engagement. 

An accessory obligation is one which is 
dependent on the principal obligation; for 
example, if I sell you a house and lot of 
ground, the principal obligation on my part 
is to make you a title for it; the accessory 
obligation is to deliver you all the title- 
papers wjiich I have relating to it, to take 
care of the estate till it is delivered to you, 
and the like. 

An alternative obligation is where a per- 
son engages to do or to give several things 
in such a manner that the payment of one 
will acquit him of all. 

Thus, if A agrees to give B, upon a sufli- 
cient consideration, a horse, or one hundred 
dollars, it is an alternative obligation. Poth- 
ier. Obi. pt. 2, c. 3, art. 6, no. 245. 

In order to constitute an -alternative obli- 
gation it is .necessary that two or more 
things should be promised disjunctively ; 
where they are promised conjunctively, there 
are as many obligations as the things which 
are enumerated ; but where they are in the 
alternative, though they are all due, there is 
but one obligation, which may be discharged 
by the payment of any of them. 

The choice of performing one of the obliga- 
tions belongs to the obligor, unless it is ex- 
pressly agreed that it shall belong to the 
creditor ; Dougl. 14 ; 1 Ld. Raym. 279; Gal- 
loway V. Legan, 4 Mart. N. S. (La.) 167. If 
one of the acts is prevented by the obligee 
or the act of God, the obligor is discharged 
from both. ,See 2 Evans, Pothier, Obi. 52; 
Viner, Abr. Condition (S b) ; Conjunctive; 
DisjtTNCTivE ; Election. 

A civil obligation is one which has a bind- 
ing operation in law, and which gives to the 
obligee the, right of enforcing it in a court of 
justice ; in other words, it is an engagement 
binding on the obligor. Sturges v. Crownin- 
shield, 4 Wheat. (TJ. S.) 197, 4 L. Ed. 529; 
Ogden V. Saunders, 12 Wheat (U. S.) 318, 
337, 6 L. Ed. 606. 



OBLIGATION 



2394 



OBLIGATION 



CSvU obligations are divided into express 
and implied, pure and conditional, primitive 
and secondary,' principal and accessory, ab- 
soluie and i alternative, determinate and in- 
determinate, divisible and indivisible, single 
and penal, and joint and several. They are 
also purely personal, purely real, or mixed. 

A conditional obligation is one the execu- 
tion of which is suspended by a condition 
which has not been accomplished, and sub- 
ject to which it has been contracted. 

A contractual obligation is one which 
arises from a contract or agreement. . See 
that title. 

A determinate obligation is one which has 
for its object a certain thing: as, an obliga- 
tion to deliver a certain horse named Bucep- 
• halus. In this case the obligation can only 
be discharged by delivering the identical 
horse. 

A divisiMe obligation is one which, being 
a unit, may nevertheless be lawfully divided, 
with or /without the consent of the parties. 

It is clear that it may be divided by con- 
sent, as those who made it may modify or 
change it as they please. But some obliga- 
tions may be divided without the consent of 
the obligor: as where a tenant is bound to 
pay two hundred dollars a year rent to his 
landlord, the obligation is entire; yet, if his 
landlord dies and leaves two sons, each will 
be entitled to one hundred dollars ; or if 
the landlord sells one undivided half of the 
estate yielding the rent, the purchaser will 
be entitled to receive one hundred dollars 
and the seller the other hundred. See Ap- 

POBTIONMENT. 

Express or conventional obligations are 
those by which the obligor binds himself 
in express terms to perform his obligation. 

Imperfect obligation^ are those which are 
not binding on us as between man and man, 
and for the non-performance of which we 
are accountable to God only : such as charity 
or gratitude. In this 'sense an obligation is 
a mere duty. Pothier, Obi. art. pr&amp;l. n. 1. 

An implied obligation is one which arises 
by operation of law: as, for example, if I 
send you daily a loaf of bread, without any 
express authority, and you make use of it 
in your family, the law raises an obligation 
on your, part to pay me the value of the 
'bread. 

An indeterminate obligation is one where 
tljie obligor binds himself to deliver one of 
a certain species : as, to deliver a horse, 
where the delivery of any horse will dis- 
charge the obligation. 

An indivisible obligation is one which is 
not susceptible of division : as, for example, 
if I promise to pay you one hundred dollars, 
you cannot assign one-half of this to another, 
so as to give him a right of action against 
me for his share. See Divisible. 

A joint obligation is one by which several 
obligors promise to the obligee to perform 



the obligation. When the obligation is only 
joint, and the obligors do not promise sepa- 
rately to fulfil their engagement, they must 
be all sued, if living, to compel the perform- 
ance : or, if any be dead, the survivors must 
all be sued. See Parties. 

A natural or moral obligation is one which 
cannot be enforced by action, but which is 
binding on the party who makes it in con- 
science and according to natural ju.stice. 

As, for instance, when the action is barred 
by the act of limitation, a natural obligation 
still subsists, although the civil obligation is 
extinguished; Jones v. Moore, 5 Biun. (Pa.) 
573, 6 Am. Dec. 428. Although natural ob- 
ligations cannot be enforced by action, they 
have the following effect, first, no suit will 
lie to recover back what has been paid or 
given in compliance with a natural obliga- 
tion ; 1 Term 285 ; Rosenda v. Zabriskie, 4 
Rob. (La.) 493; second, a natural obliga- 
gation ^as been held to be a sufficient con- 
sideration for a new contract; Greeves v- 
McAllister, 2 Binn. (Pa.) 591; Clark v. 
Herring, 5 id. 38; Yelv. 41 a, n. 1 ; Cowp.. 
290; 2 Bla. Com. 445; 3 Bos. &amp; P. 249, n.- 
2 East 506 ; 3 Taunt. 811 ; 5 id. 36 ; Mills v. 
Wyman, 3 Pick. (Mass.) 207; Chitty, Contr.,. 
12th ed. 38; Hare, Contr. 264; Poll. Contr. 
168; but see Moeal Obligation; Consideba- 

TION. 

Obediential obligations. Such obligations, 
as are incumbent on parties in consequence 
of the situation or relationship in whiieh 
they are placed. Ersk. Prin. 60. 

A penal obligation is one to which Is at- 
tached" a penal clause, which is to be en- 
forced if the principal obligation be not per- 
formed. See Liquidated Damages. 

A perfect obligation is one which gives a 
right to another to require us to give him 
something or not to do something. These 
obligations are either natural or moral, or 
they are civil. 

A personal obligation is one by which the 
obligor binds himself to perform an act, 
without directly binding his property for its 
performance. 

It also denotes an obligation in which the 
obligor binds himself only, not including his 
heirs or representatives. 

A primitive obligation, which in one sense 
may also be called a principal obligation, is 
one which is contracted with a design that 
it should itself be the first fulfilled. 
* A principal obligation is one which is the 
most important object of the engagement of 
the contracting parties. 

A pure or simple obligation is one which 
is not suspended by any condition, either 
because it has been contracted without con- 
dition, or, having been contracted with one, 
it has been fulfilled. 

A real obligation is one by which real es- 
tate, and not the person, is liable to the ob- 
ligee for the performance. 



OBLIGATION 



2395 



OBLIGEE 



A familiar example will explain this. 
When an estate owes an easement as a right 
of way, it Is the thing, and not the owner, 
who owes the easement. Another Instance 
occurs when a person buys an estate which 
has been mortgaged, subject to the mort- 
gage: he is not liable for the debt, though 
the estate is. In these cases the owner has 
an interest only because- he is seized of the 
servient estate or the mortgaged premises, 
and he may discharge himself by abandon- 
ing or parting with the property. The ob- 
ligation is both personal and real when the 
obligor has bound himself and pledged his 
estate for the fulfilment of the obligations. 

A secondary obligation is one which is 
contracted and is to be performed in case 
the primitive cannot be. For example, if 
I sell you my house, I bind myself to give 
a title: but I find I cannot, as the title is 
in another: then my secondwy obligation 
is to pay you damages for my non-perform- 
ance of my obligation. 

A several obligation is one by which one 
individual, or, if there be more, several in- 
dividuals, bind themselves separately to per- 
form the engagement. In this case each 
obligor may be sued separately; and if one 
or more be dead, their respective executors 
may be sued. See Pasties. 

A single obligation is one without any 
penalty: as where I simply promise to pay 
you one hundred dollars. This is called a 
single bill, when it is under seal. 

OBLIGATION OF CONTRACTS. A state 
statute which authorizes the redemption , of 
property sold upon foreclosure of a mort- 
gage, where no right of redemption previous- 
ly existed, or which extends the period of 
redemption beyond the time formerly allow- 
ed, cannot constitutionally apply to a sale 
under a mortgage executed before its pas- 
sage; Barnitz v. Beverly, 163 U. S. 118, 16 
Sup. Ct. 1042, 41 L. Ed. 93. The subject is 
treated under Impairing the Obligations of 

CONTBACTS. 

OBLIGATORY PACT. In Civil Law. An 

informal obligatory declaration of consensus, 
which the Roman law refused to acknowl- 
edge. Sohm, Kom. L. 321. 

OBLIGATORY RIGHTS. In the Civil Law. 

One class of private rights between debtors 
and creditors. 

OBLIGEE. The persons in favor of whom 
some obligation is contracted, whether such 
obligation be to pay money or to do or not to 
do something. La. Code, art. 3522, no. 11. 

ObUgees are either several or joint. An 
obligee is several when the obligation is 
made to him alone; obligees are joint when 
the obligation is made to two or more ; and 
in that event each is not a creditor for his 
separate share, unless the nature of the sub- 
ject or the particularity of the expression 
in the instrument lead to a different conclu- 



sion. 2 Pothier, Obi., Evans ed. 56; -Hob. 
172; Cro. Jac. 251. The words obligee and 
payee have been held to have a technical and 
definite meaning under an act relative to 
promissory notes, bonds, etc., and apply only 
to notes, bonds, or bills whether given for 
the payment of money or for the perform- 
ance of covenants and conditions, and not to 
mortgages; Hall v. Byrne, 1 Scam. (111.) 
142. 

OBLIGOR. The person who has engaged 
to perform some obligation. La. Code, art. 
3522, no. 12. One who makes a bond. 

Obligors are joint and several. They are 
joint when they agree to pay' the obliga- 
tion jointly : and then the survivors only 
are liable upon it at law, but in equity the 
assets of a deceased joint obligor may be 
reached; 1 Bro. C. C. 29.; 2 Ves. 101, 371. 
They are several when one or more bind 
themselves and each of them separately to 
perform the obligation. In order to become 
an obligor, the party . must actually, either 
himself or by his attorney, enter into the 
obligation and execute it as his own. If a 
man sign and seal a bond as his own and 
deliver it, he will be bound by it although 
his name be not mentioned In the bond ; Wil- 
Eams V. Greers' . Adm'rs, 4 Hayw. (Tenn.) 
239; Stone v. Wilson, 4 McCord (S. C.) 
203; Smith v. Crookei;, 5 Mass. 538; Blakey 
V. Blakey, 2 Dana (Ky.) 463; Vanhook v. 
Barnett, 15 N. C. 272. When the obUgor 
signs between the penal part and the condi- 
tion, still the latter wiU be a part of the in- 
strument; Reed v. Drake, 7 Wend. (N. Y.) 
345; Argenbright v. Campbell, 3 Hen. &amp; M. 
(Va.) 144. 

The execution of a bond by the obligor, 
In blank, with verbal atithority to fill it up, 
does not b|nd the obligor, though it is after- 
wards filled up, unless the bond is redeliver- 
ed or acknowledged or adopted; Boyd v. 
Boyd, 2 N. &amp; M'C. (S. C.) 125; U. S. v. 
Nelson, 2 Brock. 64, Fed. Cas. No. 15,862; 
Ayres v. Harness, 1 Ohio 368, 13 Am. Dec. 
629; Peebles v. Mason, 13 N. C. 369; Byers 
V. McClanahan, 6 Gill &amp; J. (Md.) 250. But 
see, contra, Wiley v. Moor, 17 S. &amp; B. (Pa.) 
438, 17 Am., Dec. 696; and see Sigfried v. 
Levan, 6 S. &amp; li. (Pa.) 308, 9 Am. Dec. 427; 
Franklin Bk. v. Bartlet, Wright (Ohio) 742; 
Blank. 

All obligors in a joint bond are presumed 
to be principals, except such as have the 
word "security" opposite their names; Har- 
per's Adm'r v. McVeigh's Adm'r, 82 Va. 751, 
1 S. B. 193. 

OBLITERATION. In the absence of .stat- 
utory provisions to the contrary, the obliter- 
ation of part of a will, leaving it otherwise 
complete, with the intention by the testator 
to annul only what was cancelled, leaves the 
residue valid ; Blgelow v. Gillott, 123 Mass. 
102, 25 Am. Rep. 32. A line drawn through 
the writing is, doubtless, an obliteration. 



OBLITERATION 



2306 



OBSCENITY 



though it may leave it aa legible as it was 
before; Appeal of Evans, 58 Pa. 244. See 
note to 25 Am. Rep. 35 ; Wills. 

OBLOQUY. Censure; reproach. Bettiier 
V. Holt, 70 Cal. 275, 11 Pac. 713. 

OBREPTION. Acquisition of escheats, 
etc., from a sovereign, by making false rep- 
resentations. Bell, Die. Sulireption; Oalv. 
Lex. 

OBROGATION. The annulling a law, in 
whole or in part, by passing a law contrary 
to it. The alteration of a law. Calv. Lex. 

OBSCENE. Something which is offensive 
to chastity ; something that is foul and filthy, 
and for that reason is offensive to» a pure- 
minded person. U. S. v. Clarke, 38 Fed. 732. 
That which is offensive to chastity and mod- 
esty. U. S. V. Harmon, 45 Eed. 414 ; U. S. v. 
Martin, 50 id. 918. See Obscenity. 

OBSCENITY. In Criminal Law. ■ Such in- 
decency as is calculated to promote the vio- 
lation of the law and the general corruption 
of morals. It is that form of indecency 
which is calculated to promote the general 
corruption of morals. U. S. v. Males, 51 Fed. 
41. ' In all cases an indictment for obscenity 
must aver exposure and offence to the com- 
munity generally; mere private indecency is 
not indictable at common law; 2 Whart. Cr. 
L. § 1431. 

The test is : "Whether the tendency of the 
matter charged as obscenity is to deprave 
and corrupt those whose minds are open to 
such immoral influences, and into whose 
hands a publication of this sort may fall ;" 
L. R. 3 Q. B. 371 ; it is no defence that it 
was done with the idea of accomplishing a 
good purpose; id.; L. R. 7 C. P. 261; or that 
the matter is an accurate report of a Judi- 
cial proceeding; id. 

The exhibition of an obscene picture is an 
indictable offence at common law, although 
not charged to have been exhibited in public, 
if it be averred that the picture was exhibit- 
ed to sundry persons for money ; Arch. Cr. 
Pr. 1034; Com. v. Sharpless, 2 S. &amp; R. (Pa.) 
91, 7 Am. Dec. 632. The stat. 20 and 21 
Vict. c. 83, gives summary powers for the 
searching of houses in which obscene books, 
etc., are suspected to be kept, and for the 
seizure and destruction of such books. By 
various acts of congress, the importation and 
Circulation, through the mails or in inter- 
state commerce, of obscene literature or ar- 
ticles of any kind is rendered punishable 
with fine or imprisonment; R. S. §§ 2491, 
3893, 5389 ; Act of Aug. 5, 1909 ; Act of March 
4, 1909. See Com. v. Landis, 8 Phila. (Pa.) 
453 ; Com. v. Dejardin, 126 Mass. 46, 30 Am. 
Rep. 652 ; Fuller v. People, 92 111. 182 ; XJ. S. 
V. Males, 51 Fed. 41. R. S. § 3893, as amend- 
ed by act of congress (19 Stat. L. p. 90), pro- 
hibiting the mailing of obscene papers, is 



not 1q contravention of the first amendment 
to the constitution providing that the free- 
dom of the press shall not be abridged; Re 
Jackson, 96 U. S. 727, 24 L. Ed. 877; Har- 
man v. TJ. S., 50 Fed. 921. An obscene book 
or paper within the act relating to nonmail- 
able matter means one which contains im- 
modest and indecent matter, the reading 
whereof would have a tendency to deprave 
and corrupt the minds of those in whdse 
hands the publication might fall, and whose 
minds are open to such immoral influences; 
U. S. V. Clarke, 88 Fed. 732. Mailing a pri- 
vate sealed letter containing obscene matter 
is an offence within the statute; Andrews v. 
U. S., 162 U. S. 420, 16 Sup. Ct. 798, 40 L. 
Ed. 1023 ; U. S. v. Gaylord, 50 Fed. 410. . 

It is not essential to the commission of the 
offence that the defendant personally mailed 
the objectionable matter; Burton v. U. S., 
142 Fed. 57, 73 C. C. A. 243; nor that the en- 
tire contents of a newspaper or parcel de- 
posited In the mail be objectionable; DemoUl 
y U. S., 144 Fed. 363, 75 C. C. A. 365, 6 L. B. 
A. (N. S.) 424, 7 Ann. Cas. 121. 

Where the necessary "inference from the 
language used in a letter was obscene, it was 
held immaterial that the words used were 
not themselves obscene; U. S. v. Moore, 129 
Fed. 159. 

The character pf a publication as to wheth- 
_er obscene or otherwise is not to be deter- 
mined by the motives of the author or send- 
er in making or sending it ; Ti. S. v. Clarke, 
38 Fed. 500. An indictment for selling an 
obscene book need not set out the obscene 
matter nor even describe the same in gener- 
al terms, if it identifies the book and states 
that the contents are too indecent to be 
placed upon the record; People v. Kaufman, 
14 App. Div. 305, 43 N. Y. Supp. 1046. 

The fact that a woman. In whose presence 
obscene language is used, is herself in the 
habit of using such language, can in no case 
constitute a justification, but may mitigate 
the offence; Golson v. State, 86 Ala. 601, 5 
South. 799. 

See Indecent Exposuee; Letter. 

OBSERVE. In Civil Law. Toperform 
that which has been prescribed by some law 
or usage. Dig. 1. 3. 32. 

OBSOLETE. A term applied to laws 
which have lost their efilcacy without being 
repealed. 

A positive statute, unrepealed, can never 
be repealed by non-user alone ; Respublica v. 
County Com'rs, 4 Yeates (Pa.) 181; Wright 
V. Crane, 13 S. &amp; R. (Pa.) 447. The disuse 
of a law is at most only presumptive evi- 
dence that society has consented to such a 
repeal; however this presumption may oper- 
ate on an unwritten law, it cannot, in gener- 
al, act upon one which remains as a leglsla- 



OBSOLETE 



2397 



OBSTRUCTING- A STREET 



tlve act on the statute-book ; because no pre- 
sumption can set aside 'a certainty. A writ- 
ten law may Indeed become obsolete when 
the object to which it was Intended to apply, 
or the occasion for which it was enacted, no 
longer exists; 1 P. A. Bro. App. 28; Wil- 
liamson V. Bacot, 1 Bay 62. "It must be a 
very strong case," says Tilghman, 0. J., "to 
justify the court in deciding that an act 
standing on the statute-book, unrepealed, is 
obsolete and invalid. I will not say that 
such case may not exist, — where there has 
been a non-user for a great number of 
years, — ^where, from a change of times and 
manners, an ancient sleeping statute would 
do great mischief if suddenly brought Into 
action, — where a long practice inconsistent 
with it has prevailed, and especially where 
from other and later statutes it might be 
inferred that in- the apprehension of the 
legislature the old one was not in force." 
Wright V. Crane, 13 S. &amp; R. (Pa.) 452; 
Rutherford, Inst. bV 2, c. 6, s. 19; Merlin, 
B6pert, Desuetude. In Appeal of Porter, 30 
Pa. 496, it was held that a statute is not re- 
pealed by non-user, but that the usage and 
customs of an advancing people may dis- 
place a statute which has become unfitted 
for modern use. It may be repealed by long 
non-user, especially where the current of leg- 
islation shows that it was regarded by the 
legislature as being no longer in force ; Pear- 
son V. Distillery, 72 la. 348, 34 N. W. 1 ; con- 
tra, Snowden v. Snowden, 1 Bland (Md.) 550. 
An act of Congress enacted in 1874 cannot be 
regarded as obsolete because recourse has 
not often been had to it since its passage; 
Gostello V. Palmer, 20 App. D. C. 210. The 
fact that a penal statute has been on the stat- 
ute books for over 40 years, ' and has not 
been applied in a particular manner, does 
not preclude the application and enforcement 
of the statute in that manner if it may 
properly be so applied and enforced; State 
v. Nease, 46 Or. 433, 80 Pac. 897. * 

"Neither contrary practice nor disuse can 
repeal the positive enactment of a statute; 
L. R. 3 P. C. 650, per Hatherly, L. C. ; what- 
ever be the law in Scotland ; McCl. &amp; Y. 119. 
In the civil law, according to Julianus, laws 
were abrogated through disuse; Taylor, Ju- 
rispr. .491. 

OBSTA PRINCIPIIS. Withstand begin- 
nings. It is the duty of. the court to be 
watchful for the constitutional rights of the 
citizen and against any stealthy encroach- 
ments thereon. Their motto should be olsta 
principiis. Boyd v. U. S., 116 U. S. 635, 6 
Sup. Ct. 524, 29 L. Ed. 746. 

OBSTANTE. Withstanding ; hindering, 
See NoN Obstante. 

OBSTRUCTING A STREET. To block 
up ; , to hinder or Impede. To omit, after no- 
tice, to remove an obstruction, is to wilfully 
obstruct a highway; 12 Q. B. D. 121 ; as is 



the leaving on the side of a highway apy- 
thlng calculated to frighten horses; 12 id. 
110. 

See Stbeet; Nuisance; Hiohwat. 

OBSTRUCTING JUSTICE. The act by 
which ope or more persons attempts to pre- 
vent, or do prevent, the execution of lawful 
process. It applies also to obstructing the 
administration of justice in any way — as by 
hindering witnesses from appearing. 

The officer must be prevented by actual 
viqlence, or by threatened violence accompa- 
nied by the exercise of force, or by those 
having capacity to employ it, by which the 
officer is prevented from executing his writ. 
The officer is not required to expose his per- 
son by a personal conflict with the offender; 
U. S. V. Lowry, 2 Wash. C. C. 169," Fed. Cas. 
No. 15,636. See Crumpton v. Newman, 12 
Ala. 199, 46 Am. Dee. 251; State v. Welch, 
37 Wis. 196; Pierce v. State, 17 Tex. App. 
232 ; Whart. Cr. L. § 652. 

This is an offence against public justice of 
a very high and presumptuous nature; and 
more particularly so where the obstruction 
is of an arrest upon criminal process. A 
person opposing an arrest upon criminal pro- 
cess becomes thereby particeps criimnis; 
that Is, an accessory in felony, and a princi- 
pal In high treason; 4 Bla. Com. 128; 1 
Russ. Or. 360. See U. S. v. Bachelder, 2 Gall. 
15, Fed. Cas. No. 14,490; State v. Noyes, 25 
Vt. 415; State v. Hailey, 2 Strobh. (S. C.) 
73; State v. Henderson, 15 Mo. 486; Petti- 
bone V. U. S., 148 U. S. 197, 13 Sup. Ct. 542, 
of L. Ed. 419. 

The fact that a person whom a mayor at- 
tempts to arrest does not know that he is 
authorized by the charter of the city to 
make arrests, does not change his responsi- 
bility for acts committed in resisting arrest ; 
State V. Williams, 36 S. C. 493, 15 S. E. 554 ; 
one who resists an officer trying to arrest 
him, knowing him to be such, does so at his 
pferil; State v. Russell \l&amp;.) 76 N. W. 653; 
if a peace officer making an arrest use undue 
force, yet if the person resist, not in self- 
defence, but to escape arrest, it is an of- 
fence; State V. Dennis, 2 Marv. (Del.) 433, 
43 Atl. 261; so is pointing an unloaded gun 
at an officer making an arrest ; State v. Rus- 
sell (la.) 76 N. W. 653; but where a person, 
who is not vested by law with authority to 
make an arrest, attempts to do so, he acts 
as a private citizen, and one who opposes 
him therein Is not guilty of opposing an offi- 
cer; U. S. V. Baird, 48 Fed. 554. 

Witnesses may be hindered by persuasion, 
advice or threats; State v. Bringgold, 40 
Wash. 12, 82 Pac. 132, 5 Ann. Cas. 716. 

OBSTRUCTING THE MAIL. See Postal 
Sebvice. 

OBSTRUCTING PUBLIC WORSHIP. See 

DlSTUBBANCE OF PtTBLIC WOESHIP. 



OBSTRUCTINa RAILWAYS 



2398 



OCCUPANCY 



OBSTRUCTING RAILWAYS. Acts consti- 
tuting the obstruction of railroad tracks 
a crime exist in many states, e. g. Ala- 
bama, California, Indiana, Iowa, Massachu- 
setts, Minnesota, Mississippi, Nebraska, New 
Hampshire, New York, and Tennessee and in 
England. The motive with which it- is done 
is not material; Clifton v. State, 73 Ala. 4X3; 
it need nat appear that an obstruction mali- 
&lt;;iously placed on the track did actually hin- 
der the. trains; State v. Clemens, 38 la. 257. 
It is the intent of the act and not the natural 
consequences which makes a crime; 25 Alb. 
L. J. 419. A driver of a vehicle who refuses 
to turn ofC a street railway track, when noti- 
fied, may be guilty of obstructing a railway 
track; Com. v. Temple, 14 Gray (Mass.) 69. 
In Texas It must be shown that the obstruc- 
tion was such as would endanger human 
life ; Bullion v. State, 7 Tex. App. 462. If a 
person's wagon accidentally becomes caught 
in a crossing, he is not liable on an indict- 
ment for obstructing the track, though he 
was negligent ; 3 L. T. 665. 

Permitting cars to remain for an unneces- 
sarily long time on a highway is a nuisance ; 
■ State V. E. Co., 95 N. C. 602 ; whether it be 
in bad faith or not ; State v. R. Co., 120 Ind. 
298, 22 N. E. 307. ■ 

See NtriSANCE; Railroad. 

OBVENTIO (Lat. olvenire, to fall in). In 
Civil Law. Rent or profit accruing from a 
thing,' or from industry. It is generally used 
In the plural. 

In Old English Law. The revenue of spir- 
itual living, so called. Cowell. Also, in the 
plural, offerings. Co. 2d Inst. 661. 

OBVIOUS. Apparent; evident; manifest. 
An obvious imitation of a patent does not 
mean obvious to an uneducated or unskilled 
eye, but obvious to a judge or jury, sitting 
as experts; 15 Ch. D. 181; 50 L. T. 420. See 
15 Ct. Sess. Cas., 4th ser. 660. 

OOCASIO. A trilwte imposed by the lord 
on his vassals or tenants. 

OCCUPANCY. The taking possession of 
those things corporeal which are without an 
owner, with an intention of appropriating 
them to one's own use. 

Potbier defines it to be the title by whicb one ao- 
&lt;lulreB property in a thing which belongs to nobody, 
by taking possession of it with design of aoguiring 
it. Tr. du Dr. de Propriiti, n. 20. The Civil Code 
of Louisiana, art. 3375, nearly following Pothier, de- 
fines occupancy to be "a mode of acquiring prop- 
erty by which a thing which belongs to nobody be- 
comes the property of the person who took posses- 
sion of it with an intention of acquiring a right of 
'Ownership in it." The basis of its origin seems to 
be not an instinctive bias towards the institution of 
property, but a presumption, arising out of the long 
continuation of that institution, that everything 
Should have an owner. Maine, Anc. L. 249. Occu- 
pancy is sometimes used in the sense of occupation 
or holding possession ; indeed It has come to be 
very generally so used in this country io homestead 
laws, public-land laws, and the like ; Walters V. 
People, 21 111. 178; Redfield v. R. Co., 25 Barb. (N. 



Y.) 54 ; Act of Cong. May 29, 1830 (4 Stat, at L. 
420) ; Weisbro(} v. Daenlcke, 36 Wis. 73 ; see Quehl 
V. Peterson, . 47 Minn. 13, 49 N. W. 390 ; 12 Q. B. 
Div. 356; 2 id. 588 ; but this does not appear to be 
a common legal use of the term, as recognized by 
English authorities. 

To constitute occupancy, there must be a 
taking of a thing corporeal, belonging to 
nobody, with an intention of becoming the 
owner of it ; Co. Litt. 416. 

A right by occupancy attaches in the finder 
of lost goods unreclaimed by the owner; in 
the captor of beasts fercB naturvs, so long as 
he retains possession; 2 Bla. Com. 403; the 
ow^er of -lands by accession, and the own- 
er of goods acquired by confusion. 

It was formerly considered, also, that the 
captor of goods contraband of war acquired 
a right by occupancy ; but it is now held 
otherwise, such goods being now held to be 
primarily vested in the sovereign, and as be^ 
longing to individual captors only to the 
extent and under such Regulations as posi- 
tive laws may prescribe; 2 Kent 290. See 
Peize. 

OCCUPANT. One who has the actual use 
or possession of a thing. See Lechler v. 
C^apin, 12 Nev. 65. 

When the occupiers of a house are entitled 
to a privilege in consequence of such occu- 
pation, as to pass along a way, to enjoy a 
pew, and the like, a person who occupies a 
part of such house, however small, is enti- 
tled to some right, and cannot be deprived 
of it; 2 B. &amp; Aid. 164; 1 Chitty, Pr. 209; 
4 Comyns, Dig. 64; 5 i(J. 199. See Fleming 
V. Maddox, 30 la. 242; 3 Q. B. 449. 

OCCUPATIO. "The advisedly taking pos- 
session of that which is at the moment the 
property of no man, with a view of acquiring 
property in it for yourself." Maine, Anc. 
L. 245. The advised assumption of physical 
possession. Id. 256. 

OCCUPATION. Use or tenure: as, the 
house is in the occupation of A B. A trade, 
business, or mystery : as, the occupation of a 
printer. See Schuchardt v. People, 99 111. 
506, 39 Am. Rep. 34. 

It is synonymous with possession as com- 
monly used, but as used in a. fire insurance 
policy the word unoccupied, is not synony- 
mous with vacant, but is that condition 
where no one. has the actual use or posses- 
sion of the thing or property in question; 
Yost V. Ins. Co., 38 Pa. Super. Ct. 594 ; Har- 
diman v. Fire Ass'n, 212 Pa. 383, 61 Atl. 
990. 

A putting out of a man's freehold in time 
of war. Co. Litt. s. 412. See Mhitaet Oc- 
cupation. 

OCCUPATION TAX. See Tax. 

OCCUPAVIT (Lat). In Old Practice. 

The name of a writ which lies to recover the 
possession of lands when they have been 



OCCUPAVIT 



2399 



OFFENCE 



taken, from the possession of the owner by 
occupation, (g. v.) 

OCCUPIER. One who is in the enjoy- 
ment of a thing. 

A., tenant, though absent, is, generally 
speaking, the occupier of premises ; 1 B. &amp; 
C. 178; but not a servant or other person 
who may be there virtute officii; 26 L. J. 0. 
P. 12 ; 47 L. J. Ex. 112 ; L. R. 1 Q. B. 72. 

OCCUPY. To hold in possession; to hold 
or keep for use: as, to occupy an apartment. 
Missionary Society v. Dalles, 107 U. S. 343, 
2 Sup. Ct 672, 27 K Ed. 545. In legal ac- 
ceptation, actual use, possession, and culti- 
vatioUi Jackson v. Sill, 11 Johns. (N. Y.) 
202, 6 Am. Dec. 863 ; Inhabitants of Phlllips- 
burgh V. Bruch's Ex'r, 37 N. J. Eq. 486. 

OCCUR. To happen. Johnson t. Ins. Co., 
91 111. 95, 83 Am. Rep. 47. 

OCHLOCRACY. A government where the 
authority is in the hands of the multitude ; 
the abuse of a democracy. Vaumfene, Diet, 
du Langage Politique. Mob rule. See Gov- 

EENMENT. 

OCTAVE (Law Lat. utas). In Old Eng- 
lish Practice. The eighth day inclusive after 
a feast. 3 Bla. Com. 277. 

OCTO TALES (Lat. eight such)'. If, when 
a trial at bar is called on, the number of ju- 
rors in attendance is too small, the trial 
must be adjourned, and a decern, or octo tales 
awarded, according to the number deficient; 
as, at common law, namely, a writ to the 
sheriff to summon eight more such men as 
were originally summoned. 3 Bla. Com. 364. 

OCTROI (Fr.). Toll or a duty paid on 
entering a city. 

ODHAL RIGHT. An allodial right. See 
Alod. 

ODIO ET ATIA. See De Odio bt Atia. 

0F» The word has been held equivalent 
to after ; 10 L. J. Q. B. 10 ; at ; belonging to ; 
Davis V. State, 38 Ohio St. 506; manufac- 
tured by; 2 Bing. N. 0. 668; by; Hannum 
V. Kingsley, 107 Mass. 355 ; residing at ; Por- 
ter V. Miller, 3 Wend. (N. Y.) 329; 8 A. &amp; 
B. 232. 

OF COUNSEL. A phrase commonly ap- 
plied in practice to the counsel employed 
by a party in a cause. 

OF COURSE. That which may be done 
in the course of legal proceedings without 
making any application to the court ; that 
which is granted by the court, without fur- 
ther inquiry, upon its being asked : as, a 
rule "to plead is a matter of course. 

OFFENCE. The doing that which a penal 
law forbids to be done, or omitting to do 
what it commands. In this. sense, it is near- 
' ly synonymous with crime. In a more con- 
fined sense, it may be considered as having 
tlie same meaning with misdemeanor ; but it 



differs from it in this, that it is not indicta- 
ble, but punishable summarily by the for- 
feiture of a penalty; 1 Chitty, Pr. 14.. 

'.OFFER. A proposal to do a thing. 

An offer, as an element of a contract, is 
a proposal to make a contract. It must be- 
made by the person who is to make the prom- 
ise, and it must be made to the person to 
whom the promise is made. It may be made 
either by words or by signs, either orally 
or in writing, and either personally or by a 
messenger; but in whatever way it is made, 
it is not in law an offer untU it comes to the 
knowledge of the person to whom it is made ; 
Langd. Contr. § 151 ; 6 H. L. Cas. 112. While 
an offer remains in force, it confers upon 
the offeree the power to convert it into a 
promise by accepting it. The offerer may 
state how long it shall remain in force ; and 
it will then remain in force during the time- 
so stated, unless sooner revoked ; Boston &amp; 
M. R. Co. V. Bartlett, 3 Gush. (Mass.) 224&gt; 
But see infra. In the absence of any specifi- 
cation by the offerer, an offer will remain in 
force a reasonable time unless sooner revok- 
ed ; Leake, Contr. 33 ; Minneapolis &amp; St L.. 
R. Co. V. Rolling Mill, 119 TJ. S. 151, 7 Sup. 
Ct. 168, 30 L. Ed. 376. As to what will be 
a reasonable time, no uniform positive rule 
can be laid down. When an offer is made 
personally, it will prima facie continue un- 
til the Interview or negotiation terminates, 
and longer; Mactier's Adm'rs v. Frith, ft 
Wend. (N. Y.) 103, 21 Am. Dec. 262. In com- 
mercial transactions, when an offer is made 
by mail, the general rule is that the offerer 
is entitled to an answer by return mail ; but 
this will not apply in all cases, e. g. when- 
there are several mails each day. In trans- 
actions which are not commercial, much less 
promptitude in answering is required; Langd&gt; 
Contr. § 152. 

Where the offer contemplates a unilateral 
contract, the length of time that the offer 
will continue in force depends upon differ- 
ent considerations. The question is no longer 
one of accepting the offer orally or by letter, 
but of performing the consideration. The 
duration of such an offer, therefore, in the 
absence of any express limitation, will be 
measured by the length of time which may 
be reasonably required for the performance 
of the consideration. When performance of 
the consideration has been begun in good 
faith, it seems that the offer will continue, 
in the absence of actual revocation, until the 
performance is either completed or aban- 
doned, especially when the performance of 
the consideration is constantly within the 
knowledge of the offerer; Langd. Contr. § 
155. An offer which contains no stipulation 
as to how long it shall continue is revocable 
at any moment; Poll. Contr. 27. A stipulaj- 
tion that an offer shall remain open for a 
specified time must be supported by a suffi- 
cient consideration, or be contained in an in- 



OFFER 



2400 



OFFER 



strument tinder seal, in order to be binding ; 
Langd. Contr. § 178; 3 Term 653. When 
thus made binding, the offer Is not irrevoca- 
ble, but the only effect is to give theofferej 
n claim for damages If the stipulation be 
broken by revoking the offer. When an of- 
fer is made for a time limited in the offer 
itself, no acceptance afterwards will make 
it binding; an offer which in its terms limits 
the time of acceptance is withdrawn by the 
expiration of the time ; Waterman v. Banks, 
144 U. S. 394, 12 Sup. Ot. 646, 36 L. Ed. 479. 

As an offer can only be made by communi- 
cation from the offerer to the offeree, so it 
can only be revoked in the same manner. 
But the death or Insanity of the offerer dur- 
ing the pendency of the offer, revokes it; 
Langd. Contr. § 180. 

An offer can only be accepted in the terms 
in which it is made; an acceptance, there- 
lore, which modifies the offer in any particu- 
lar, goes for nothing ; L. R. 7 Ch. App. 587 ; 
Minneapolis &amp; St. L. R. Co. v. Rolling Mill 
Co., 119 U. S. 151, 7 Sup. Ct. 168, 30 L. Ed. 
376. The other party having once rejected 
the offer, cannot afterwards revive it by ten- 
dering an acceptance of it; First N. Bk. v. 
Hall, 101 U. S. 50, 25 L. Ed. 822 ; Minneapo- 
lis &amp; SfL. R. Co. v. Rolling Mill Co., 119 XJ. 
S. 151, 7 Sup. Ct. 168, 30 L. Ed. 376. 

A mere proposal to sell may be revoked 
at any time before acceptance; Miller v. 
Douville, 45 La. Ann. 214, 12 South. 132. 
It is withdrawn by the death of the maker ; 
2 Ch. Div. 475. 

Where an offer of sale of land stands for 
twenty years, and until after the death of 
the party to whom It is made, without com- 
pliance with its terms, the widow and sole 
•devisee of such party cannot accept the 
proposition, and offer to perform it, and 
thereby make ,a contract binding on the 
proposer; Marr v. Shaw, 51 Fed. 860. 

A man may change his mind at any time, 
if it is not to the injury of another ; he may, 
therefore, revoke or recall his offers at any 
time before they have been accepted; and, 
in order to deprive him of this right, the 
offer must have been accepted on the terms 
in which it was made; 10 Ves. 438; 2 C. &amp; 
P. 553. See Ans. Contr. 31. 

A general proposal by public advertisement 
may be effectually revoked by an announce- 
ment in the same newspaper, even as against 
a person who afterwards acts on the pro- 
posal not knowing that it had been revoked ; 
Shuey v. U. S., 92 U. S. 73, 23 L. Ed. 697; 
raid in PoU. Contr. 23, to be judicial legisla- 
tion. 

Any qualification of, or departure from, 
those terms invalfdates the offer, unless the 
same be agreed to by the party who made it ; 
Eliason v. Henshaw, 4 Wheat. (U. S.) . 225, 
4 L. Ed. 556; Mactier's Adm'rs v. Frith, 6 
Wend. (N. Y.) 103, 21 Am. Dee. 262; Poll. 
Contr. 38; i. e. there is no contract entered 
into. 



When the offer has been made, the party 
is presumed to be willing for the time limit- 
ed, to enter into the contract and, if the 
time be not fixed by the offer, then until 
it be expressly revoked or rendered nugatory 
by a contrary presumption ; Mactier's Adm'rs 
V. Frith, 6 Wend. (N. Y.) 103, 21 Am. Dee. 
262. See McCulloch v. Ins. Co., 1 Pick. 
(Mass.) 278; Tucker v. Woods, 12 Johns. (N. 
1.) 190, 7 Am. Dec. 305; Watson v. Coast, 35 
W. Va. 463, 14 S. E. 249; 1 Bell, Com. 326 ; 
an .offer is considered as continuously made 
until It is brought to the notice of the per- 
son to whom it was made that it is with- 
drawn. That person's refusal or counter- 
offer puts an end to the original offer; Poll. 
Contr. 30. 

And see Assent; Bid.; Option; Lettee. 

An offer must be communicated, but in 
many classes of contracts it need not be 
made to an ascertained person : as, auction 
sales; an offer of a reward (whether the 
service must have been rendered after 
knowledge of the offer of a reward is unset- 
tled ; see Ans. Contr. *24) ; an advertisement 
in railroad time-tables; letters of credit; of- 
fers to receive subscriptions for stocks or 
bonds. -An offer of a stock of goods for sale 
on bids is not such an offer that a person 
who makes the highest bid is entitled to 
them (L. R. 5 C. P. 561). An offer may be 
determined — by lapse of a specified time; by 
lapse of a reasonable time for accepting; by 
failure to comply with the terms of the offer 
as to the mode of acceptance; by the death 
of either party before acceptance ; by revo- 
cation before acceptance ; Hollingsworth, 
Contr. 11. 

The announcement of a scholarship compe- 
tition is not an offer;- [1895] 1 Ch. 480. A 
quotation of a price is not, ordinarily, an 
offer, but an invitation , to make one; [1905] 
2 Ir. 617; see [1893] A.' C. 552. 

A signed order for goods given to a travel- 
ing salesman and sent to his employers, who 
had the right to accept or reject it, was, un-. 
til acceptance, merely an offer to buy, and 
the shipment of the goods alone with an in- 
voice making different terms of payment 
did not constitute a contract ; Baird v. Pratt, 
148 Fed. 825, 78 C. C. A. 515, 10 L. R. A. (N. 
S.) 1116; Northwest Thresher Co. v. Kubicek, 
82 Neb. 485, 118 N. W. 94. 

A mental determination to accept an offer, 
and acts done in pursuance thereof, do not 
constitute an acceptance; New v. Ins. Co., 
171 Ind. 33, 85 N. E. 703, 131 Am. St. Rep. 
245. 

If a person making an offer expressly or 
impliedly Intimates in his offer that it* will 
be sufficient to act on the proposal without 
communicating acceptance to him, perform- 
ance of the condition is acceptance without 
notification ; [1877] 2 A. C. 690. 

The ordinary rules of proposal and accept- 
ance do not apply to promises embodied In 
a deed ; PoU. Contr. 52 ; such promise is oper- 



OFFER 



2401 



OFFICE 



ative without acceptance; L. R. 2 H. L. 296; 
but if the promisee refuses his assent with- 
out formality when the promise comes to his 
knowledge, the contract is avoided; Poll. 
Contr. 53, on the authority-of 3 Co. Rep. 26 ; 
h. R. 2 H. L. 312. If the proposer dies' be- 
fore his proposal is accepted, that is a revo- 
cation of the offer; Poll. Contr. 41; though 
there is said to be no distinct authority to 
show whether notice to the other party is ma- 
terial or not; id. 

There is a material distinction between the 
acceptance of an ' offer which asks for a 
promise and of an offer which asks for an 
act as the condition for the offer becoming 
a promise; the acceptance of the former 
must be communicated to the proposer, but 
the latter, it seems, need not. In the former 
case the proposed contract is called bilateral, 
in the latter unilateral; Poll. Contr. 34. 

The settled rule of law is said to be that 
if a person communicates his acceptance of 
an offer within a reasonable time after the 
offer has been made, and if within a reason- 
able time of the acceptance being communi- 
cated no variation has been made by either 
party in the terms of the offer so made and 
accepted, the acceptance must be taken to 
be simultaneous with the offer, and both to- 
gether as constituting such an agreement 
as the court will execute; 3 Mer. 441, per 
Lord Eldon, quoted in the preface to 6th 
Edition, Leake, Contracts. 

OFFERINGS. See Obventio. 

OFFICE. A right to exercise a public 
function or employment, and to take the 
fees and emoluments belonging to it. Shelf. 
Mortm. 797; Cruise, Dig. Index; Com. v. 
Sutherland, 3 S. &amp; R. (Pa.) 149. An office 
is a public charge or employment; TJ. S. v. 
Maurice, 2 Brock. 102, Fed. Cas. No. 15,747, 
per Marshall, C. J. An office may exist 
without an incumbent; People v. Stratton, 
28 Cal. 882. 

An office is a legal entity and may exist 
in fact although it be without ai) incumbent ; 
Childs V. State, 4 Okl. Cr. 474, 113 Pac. 545, 
33 L. R. A. (N. S.) 563. Compensation is 
no part of an office; it is merely incident 
thereto ; id. 

Judicial offices are those which relate to 
the administration of justice, and which 
should be exercised by persons of sufficient 
skiU and experience in the duties which 
appertain to them. 

Military offices are such as are held by 
soldiers and sailors for military purposes. 

Ministerial offices are those which give the 
officer no discretion as to the matter to be 
done, and require him to obey the mandates 
of a superior. Vose v. Deane, 7 Mass. 280. 
See Savacool v. Boughton, 5 Wend. (N. T.) 
170, 21 Am. Dec. 181; Waldo v. Wallace, 12 
Ind. 569. It is a general rule that a judicial 
office cannot be exercised by deputy, while a 
ministerial may. 

Bouv.— 151 



Political offices are such as are hot con- 
nected immediately with th^' administration 
of justice or the execution of the mandates 
of a superior officer : the offices of the presi- 
dent of the United States, of the heads of 
departments, of the members of the legisla- 
ture, are of this number. 

In the United States, all offices, accord- 
ing to the above deflnition, are public; but 
in another sense employments of a private 
nature are also called offices: for example, 
the office of president of a bank, the office 
of director of a corporation. 

Subject to constitutional provisions or pro- 
hibitions the authority of the legislature 
over public offices is complete and absolute; 
Lee V. Board of Com'rs, 3 Wyo. 52, 31 Pac. 
1045. 

Where the appointment or election is made 
for a definite term or during good behavior 
and the removal is to be for cause, it is said 
that the power of removal cannot, except by 
clear statutory authority, be exercised with- 
out notice and hearing; but that the exist- 
ence of the cause for which the- power is to 
be exercised must first be determined after 
notice has been given to the officer of the 
charges made against him, and he has been 
given an opportunity to be heard; Mechem, 
Pub. Officers, § 454 ; Coleman v. Glenn, 103 
Ga. 458, 30 S. E. 297, 68 Am. St. Rep. 108; 
DuUam v. Willson, 53 Mich. 392, 19 N. W. 
112, 51 Am. Rep. 128. But, where the stat- 
ute gives such authority, officers may be re- 
moved without notice; Trainor v. Board of 
Auditors, 89 Mich. 162, 50 N. W. 809, 15 L. 
R. A. 95; Trimble v. People, 19 Colo. 187, 34 
Pac. 981, 41 Am. St. Rep. 236; People v. 
Whitlock, 92 N. Y. 191; State v. McGarry, 
21 Wis. 496; State v. Cheetham, 19 Wash. 
330, 53 Pac. 349. 

The prevailing rule is that title to a pub- 
lic office will not be tried by mandamus; 
State v. Callahan, 4 N. D. 481, 61 N. W. 
1025; People v. Infant Asylum, 122 N. T. 
190, 25 N. E. 241, 10 L. R. A. 381; State v. 
John, 81 Mo. 13; Hartwig v. Manistee, 134 
Mich. 615, 96 N. W.' 1067; Gorley v. Louis- 
ville, 104 Ky. 372, 47 S. W. 263 ; Hagan v. 
Brooklyn, 126 N. Y. 643, 27 N. E. 265; but 
contra, Keough v. Board of Aldermen, 156 
Mass. 403, 31 N. E. 387; Eastman v. House- 
holder, 54 Kan. 63, 37 Pac. 989 ; Harwood v. 
Marshall, 9 Md. 83. Where the writ is in- 
voked to enforce a specific duty and remedies 
at law are not adequate, aid will not be re- 
fused merely because occupancy or incum- 
bency or title is incldently involved. The 
court will act under such circumstances as 
does equity and inquire into and determine 
rights so far as, but no further than, may 
be necessary to the reUef sought ; Morton v. 
Broderick, 118 Cal. 474, 50 Pac. 644. 
For the Incompatibility of office, see Isr- 

COMPATIBILITT ; OFFICER. 

See 3 Kent 362; Mandamus; Quo Wab- 

BANTO. 



OFFICE 



2402 



OFFICER 



For word "office" as used of a place for 
transacting public business, see Com. v. 
White, 6 Cush. (Mass.) 181. 

See Rank. 

OFFICE-BOOK. A book kept in a public 
office, not appertaining to a court, author- 
ized by the law of any state. 

An exemplification of any such office- 
book, when authenticated under the act of 
congress of 27th March, 1804, is to have 
such faith and credit given to it in every 
court and office within the United States as 
such exemplification has by law or usage 
in the courts or offices of the state from 
whence the same has been taken. See Foe- 
EiGN Laws ; Foeeiqn Judgment. 

OFFICE-COPY. A transcript of a record, 
or proceeding filed in an office established by 
law, certified under the seal of the proper 
officer. 

A copy made by an officer of the court, 
bound by law to make it, is equivalent to 
an exemplification, though It is sometimes 
called an "office copy"; Steph. Dig. Bv. 
art. 77. Copies of public records, whether 
judicial or otherwise, made by a public offi- 
cer authorized by law to make them, are 
often termed "office copies," e. g. copies of 
recorded deeds; Elwell v. Cunningham, 74 
Me. 127. 

A copy made by an officer of the court, 
who is authorized to make it by a rule of 
court, but not required by law to make it, 
is equivalent to an exemplification in the 
same cause and court, but in other causes 
or courts is not admissible unless it can be 
proved as an examined copy; Steph. Dig. 
Ev. art 78. These are called "office copies" ; 
Kellogg V. Kellogg, 6 Barb. (N. Y.) 130. Of- 
fice copies are said to be secondary evidence ; 
Steph. Dig. Ev. 

OFFICE FOUND. In English Law. When 
an inquisition is made to the king's use of 
anything, by virtue of office of him who in- 
quires, and" the inquisition is found, it is 
said to be office found. See Phillips v. 
Moore. 100 U. S. 212, 25 L. Ed. 603 ; Hauen- 
stein V. Lynham, 100 U. S. 484, 25 L. Ed. 
628; Inquest of Ofbice.- 

OFFICE GRANT. See Grant. 

OFFICE OF A JUDGE. In English Law. 
a' criminal suit in an ecclesiastical court, not 
being directed to the reparation of a private 
injury, is regarded as a proceeding emanat- 
ing from the office of the judge, and may be 
instituted by the mere motion of the judge. 
But in practice these suits are instituted by 
private individuals, with the permission of 
the judge or his surrogate; and the private 
prosecutor in any such case is, accordingly, 
said to promote the office of the judge. 
Coote's Eccl. Practice ; Moz. &amp; W. 

OFFICER. One who is lawfully invested 
with an office. 



An office is a public charge or ' employ- 
ment; and one who performs the duties of 
an office is an officer. Marshall, C. J., in 
U. S. V. Maurice, 2 Brock. 102, Fed. Cas. No. 
15,747. 

Executive officers are those whose duties 
are mainly to cause the laws to be executed. 

Legislative officers are those whose duties 
relate mainly to the enactment of laws, such 
as members of congress and of the several 
state legislatures. These officers are con- 
fined in their duties by the constitution gen- 
erally to make laws, though sometimes, in. 
cases of impeachment, one of the houses of 
the legislature exercises judicial functions 
somewhat similar to those of a grand jury, 
by presenting to the other articles of im- 
peachment, and the other house acts as a 
court in trying such impeachment. 

Judicial officers are those whose duties are 
to decide controversies between individuals, 
and accusations made in the name of the 
public against persons charged with viola- 
tions of the law. 

Ministerial officers are those whose duty 
it is to execute the mandates, lawfully is- 
sued, of their superiors. 

Military officers are those who have com- 
mand in the army. Non-commissioned offi- 
cers are not officers in the sense in which 
that word is generally used; Babbitt v. U. 
S., 16 Ct.' CIS. 214. 

Naval officers are those who are in com- 
mand in the navy. 

Officers are also divided into public offi- 
cers and those who are npt public. Some 
officers may bear both characters: for ex- 
ample, a clergyman is a public officer when 
he acts in the performance of such a public 
duty as the marriage of two individuals; 
Goshen v. Stonington, 4 Conn. 209, 10 Am. 
Dec. 121; and he is merely a private per- 
son when he acts in his more ordinary call- 
ing of teaching his congregation. See Kibbe 
V. Antram, 4 Conn. 134. 

Officers are required to exercise the func- 
tions which belong to their respective offices. 
The neglect to do so may, in some cases, sub- 
ject the offender to an indictment; Respub- 
lica V. Montgomery, 1 Yeates (Pa.) 419; and 
in others he will be liable to the party in- 
jured; Work V. Hoofnagle, 1 Yeates (Pa.) 
506. 

Public office in the constitution means a 
permanent public trust or employment, not 
merely transient, occasional, or incidental; 
In re Hathaway, 71 N. Y. 238. The term em- 
braces the ideas of tenure, duration, emolu- 
ments, and duties; U. S. v. Hartwell, 6 
Wall. (U. S.) 385, 18 h. Ed. 830; but it has 
been held that duration and salary are not 
of the essence of public office, and that the 
duty of acting for and on behalf of the state 
constitutes an office; People v. Bledsoe, 68 
N. C. 457 ; even though it expires as soon as 
a single act is done; State v. Stanley, 66 
N. C. 59, 8 Am. Rep. 488. The true test is 



OFFICER 



2403 



OFFICER 



that it is a parcel of the administration of 
government; Eliasou v. Coleman, 86 N. C. 
241; though it is a clerkship in a department 
and the duties are confined within narrow 
limits; Vaughn v. English, 8 Cal. 39. 

An office commonly requires something 
more than a single transitory act or trans- 
action to call it into being ; Carrington v. U. 
S., 208 XJ. S. 1, 28 Sup. Ct. 203, 52 L. Ed. 367, 
where an army officer received $3,500 from 
civil sources to be used by him in connec- 
tion with his military duties; it was held 
that he was not amenable to the Philippine 
penal code punishing a public official for 
falsification of a public docmnent. 

A public officer is one who renders a pub- 
lic service — ^a service in which the general 
public is interested ; Schmitt v. Dooling, 145 
Ky. 240, 140 S. W. 197, 36 L. R. A. (N. S.) 
881, Ann. Cas. 1913B, 1078. One who exer- 
cises some portion of the sovereign power 
of the state, either in making, administering 
or executing the laws; Olmstead v. New 
York, 10 Jones &amp; S. (N. T.) 481; Eliason v. 
Coleman, 86 N. O. 235. It is said to depend 
upon the greater importance and dignity of 
the position ; the requirement of an oath and 
perhaps of a bond, and usually upon the 
tenure; People v. Langdon, 40 Mich. 673. 

Officers of the United States are those 
nominated by the president and confirmed 
by the senate or those who are appointed 
under an act of congress, by the president 
alone, a court of law, or a head of a depart- 
ment; U. S. V. Germalne, 99 U. S. 508, 25 
L. Ed. 482; see U. S. v. Mouat, 124 U. S. 
303, 8 Sup. Ct. 505, 31 L. Ed. 463, The 
notification of the secretary of the navy is a 
valid appointment as a passed assistant sur- 
geon ; U. S. V. Moore, 95 U. S. 762, 24 L. Ed. 
588. It is generally true that a relation 
arising out of a contract and dependent for 
its duration -and extent upon the terms 
thereof is never considered an office ; Shel- 
by V. Alcorn, 36 Miss. 273, 72 Am. Dec. 169. 
Not every employment under the government 
Is an office; U. S. v. Maurice, 2 Brock. 96, 
Fed. Cas. No. 15,747. The distinction be- 
tween officer and placeman is that the for- 
mer must take an oath of office, the latter 
not; Worthy v. Barrett, 63 N. C. 199. 

Who are offlcers. The following have been 
held to be offlcers : All persons entrusted 
with the receipt of public money; Com. v. 
Evans, 74 Pa. 124 ; the receiver of a national 
bank; Piatt v. Beach, 2 Ben. 303, Fed. Cs^s. 
No. 11,215 ; clerks In ' an executive depart- 
ment of the federal government ; Talbot v. 
U. S., 10 Ct. CI. 426 ; a collector of city taxes, 
within the bankruptcy act of 1841; Morse v. 
Lowell, 7 Mete. (Mass.) 152; a representa- 
tive in a state legislature ; Morrill v. Haines, 
2 N. H. 246 (see infra) ; members of the 
boards of public safety and public works; 
secretaries of such boards ; assistant bailiff 
.of the police court; and the stenographer of 
the said court, within the meaning of a con- 



stitutional provision that the salaries of pub- 
lic officers shall be neither increased nor di- 
minished during their term of office; Louis- 
ville v. Wilson, 99 Ky. 598, 36 S. W. 944; 
a notary public, within the meaning of a 
constitutional provision that any public offi- 
cer who shall travel on a free pass shall for- 
feit his office; People v. Rathbone, 11 Misc. 
98, 32 N. T. Supp. 108, affirmed in 145 N. T. 
434, 40 N. E. 395, 28 L. R. A. 384; a repre- 
sentative in congress ; People V. Brooklyn, 77 
N. Y. 503, 33 Am. Rep. 659; a selectman; 
State V. Boody, 53 N. H. 610; the president 
of a city council ; State v. Anderson, 45 Ohio 
St. 196, 12 N. E. 656; a city superintendent 
of streets; State v. May, 106 Mo. 488, 17 S. 
W. 660; an assistant of the board of alder- 
men; Collins V. New York, 3 Hun (N. Y.) 680; 
a deputy county clerk; Gibbs v. Morgan, 39 
N. J. Eq. 126 ; a county solicitor duly elected ; 
Lancaster County v. Fulton, 128 Pa. 48, 18 
Atl. 384, 5 L. R. A. 436 ; notary public ; Gov- 
ernor V. Gordon, 15 Ala. 72 ; a passed assistant 
surgeon in the navy ; II. S. v. Moore, 95 U. S. 
760, 24 L. Ed. 588; a cadet engineer, a gradu- 
ate of the naval academy ; U. S. v. Perkins, 
116 U. S. 483, 6 Sup. Ct 449, 29 L. Ed. 700 ; 
a clerk appointed by an assistant treasurer; 
U. S. V. Hartwell, 6 WaU. (U. S.) 385, 18 L. 
Ed. 830 ; a postmaster ; Spence v. Harvey, 
22 Cal. 336, 83 Am. Dec. 69; judges and 
members of a state senate and house and 
state directors in corporations ; State v. Stan- 
ley, 66 N. C. 59, 8 Am. Rep. 488; justices of 
the peace; Ex parte Henshaw, 73 Cal. 487, 
15 Pac. 110; attendants of courts; Rowland 
V. New York, 83 N. Y. 372 ; a marshal of the 
United States; U. S. v. Strobach, 48 Fed. 
902, 4 Woods 592 ; a deputy marshal ; U. S. v. 
Martin, 17 Fed. 150; a sheriff; Worthy v. 
Barrett, 63 N. C. 199; Colte v. Lynes, 33 
Conn. 109; a deputy state treasurer; State 
V. Brandt, 41 la. 593; trustees of the state 
university and directors of a state institu- 
tion for the deaf and dumb, penitentiary, 
etc. ; People v. Bledsoe, 68 N. C. 457. 

So of the superintendent of a county peni- 
tentiary; Porter v. Pillsbury, 11 How. Pr. 
(N. Y.) 240; the medical superintendent of 
a hospital for the insane; State v. Wilson, 
2'9 Ohio St. 347 ; trustees of a state library ; 
People v. Sanderson, 30 Cal. 160; a deputy 
constable ; gtate v. Dierberger, 90 Mo. 369, 2 
S. W. 286. As to a poUjpeman, see FarreU 
V. Bridgeport, 45 Conn. 191; Shanley v. 
Brooklyn, 30 Hun (N. Y.) 396; Wilkes- 
Barre v. Meyers, 113 Pa. 395, 6 Atl. 110; 
a fire marshal; People v. Scannel, 22 Misc. 
298, 49 N. Y." Supp. 1096; a fireman; 
Schmitt v. Dooling, 145 Ky. 240, 140 S. W. 
197, 36 L. R. A. (N. S.) 881, Ann. Cas. 1913B, 
1078 ; Lynch v. North Yakima, 37 Wash. 657, 
80 Pac. 79, 12 L. R. A. (N. S.) 261; Padden 
V. New York, 45 Misc. 517, 92 N. Y. Supp. 
926 (contra, Lexington v. Thompson, 113 
Ky. 540, 68 S. W. 477, 57 L. R. A. 775, 101 



OFFICER 



2404 



OFFICEB 



Am. St. Rep. 361; State r. Jennings, 57 
Ohio St. 415, 49 N. B. 404, 63 Am. St. Rep. 
723; State v. Anaconda, 41 Mont. 577, 111 
Pac. 345). See Worthy v. Barrett, 63 N. G. 
199, where a long list of public officers is 
given. 

It has been said that members of the bar 
are "public officers and ministers of justice ;" 
Barn. Ch. 478; see also In re Cooper, 22 N. 
X. 67 (which gives a very learned argument 
by Prof. Dwight) ; Seymour v. Ellison, 2 
Cow. (N. T.) 13; contra, In re Attorneys' 
Oaths, 20 Johns. (N. Y.) 492; Ex parte Yale, 

24 Cal. 241, 85 Am. Dec. 62. ^An attomey- 
at-law is not, indeed, in the strictest sense a 
public officer, but he comes very near it ; In 
re Robinson, 131 Mass. 376, 41 Am. Rep. 
239, citing 6 Mod. 18 ; Re Bradley, 7 Wall. (U. 
S.) 364, 19 D. Ed. 214. 

The following have been hel4 not to be 
officers: A special deputy sheriff; Kava- 
naugh V. State, 41 Ala. 399; a civil surgeon 
appointed by the commissioner of pensions 
to examine applicants for pensions ; U. S. v. 
Germaine, 99 U. S. 508, 25 L. Ed. 482; a 
lamp inspector; Peck v. Belknap, 130 N. Y. 
394, 29 N. E. 977 ; a paymaster's clerk In the 
navy; U. S. v. Mouat, 124 U. S. 303, 8 Sup. 
Ot. 505, 31 L. Ed. 463 ; a United States agent 
of fortifications; U. S. v. Maurice, 2 Brock. 
96, Fed. Cas. No. 15,747; the keeper of a 
county jail ; In re Birdsong, 39 Fed. 599, 
. 4 L. R. A. 628 ; the chief clerk in a city as- 
sessor's office ; . People v. Langdon, 40 Mich. 
673 ; a mail carrier ; Sawyer v. Corse, 17 
Gratt. (Va.) 243, 94 Am. Dec. 445 {contra, 
Conwell V. Voorhees, 13 Ohio 523, 42 Am. 
Dec. 206) ; an agent appointed by a state 
to receive an extradited person ; Robb v. Con- 
nolly, 111 U. S. 624, 4 Sup. Ct. 544, 28 L. Ed. 
542 ; patrolmen on the police force of a city ; 
Shanley v. Brooklyn, 30 Hun (N. Y.) 396 
(semtle) ; firemen of cities and villages ; Peo- 
ple v. Pinckney, 32 N. Y. 377.; State v. Jen- 
nings, 57 Ohio St. 415, 49 N. E. 404, 63 Am. 
St. Rep. 723; a pilot; Dean v. Healy, 66 Ga. 
503 ; a night watchman of a post-office build- 
ing; Doyle, V. Aldermen of Raleigh, 89 N. C. 
133, 45 Am. Rep. 677 ; members of the legis- 
lature; Worthy v. Barrett, 63 N. C. 199; 
a college professor; Union County v. James, 
21 Pa. 525. Nine-tenths of the employes of 
the United States government are said not to 
be officers; U. S. v. Germaine, 99 U. S. 509, 

25 L. Ed. 482. So of a special officer ap- 
pointed to suppress the liquor traffic among 
the Indians ; U. S. v. Van Wert, 195 Fed. 974. 
County commissioners are not officers for 
the purpose of Impeachment; In re Opinion 
of the Justices, 167 Mass. 599, 46 N. E. 118. 
A United States senator elect is not a mem- 
ber of congress until he has assumed the 
duties of his office; U. S. v. Dietrich, 126 
P'ed. 676. 

See McCornick v. Thatcher, 8 Utah 294, 
30 Pac. 1091, 17 L. R. A. 243. 



Public officers are public agents or trus- 
tees and have no proprietary interest or 
property in their office beyond the lawful 
term and salary (if any) prescribed; State 
V. Hawkins, 44 Ohio St. 98, 5 N. E. 228; 
Reals V. Smith, 8 Wyo. 159, 56 Pac. 690. 
Their official rights and duties may be chang- 
ed at the discretion of the legislature during 
their term of office ; State v. Dews, R.' M. 
Charlt. (Ga.) 397; but it has been held that 
a clerk's office, to be held during good be- 
havior, and many other public offices ' are, 
under certain limitations, the subject of 
property; Hoke v. Henderson, 15 N. O. 18, 
25 Am. Dec. 677 ; the emoluments are private 
property; id. 

The profits of a public office cannot be 
assigned for the benefit of creditors; 8 CI. 
&amp; F. 295. 

The buying and selling of offices was for- 
bidden by 5 &amp; 6 Edw. VI. c. 15, under which 
it has been held that an officer having a cer- 
tain salary or certain annual profits may 
make a deputation of it, reserving a sum not 
exceeding the amount of hie profits, or the 
deputy may lawfully agree to pay so much 
out of the uncertain fees of an office ; but if 
the office have uncertain fees or profits, an 
agreement by the deputy to pay a fixed sum 
annually is a sale within the statute; and 
so is an agreement to give the deputy all the 
profits ; 3 Kent 456. 

An agreement by an applicant for an of- 
fice to divide the fees with another appli- 
cant if the latter withdraw his application 
for it, is void; Gray v. Hook, 4 N. Y. 449; 
so is a contract for the sale of an office; 
Engle V. Chipman, 51 Mich. 524, 16 N. W. 
886 ; whether made by the appointing power 
or the incumbent; Hall v. Gavitt, 18 Ind. 
390. An agreement for compensation for 
procuring the appointment or resignation of 
a public officer is void; Basket v. Moss, 115 
N. C. 448, 20 S. E. 733, 48 L. R. A. 842, 44 
Am. St. Rep. 463. So is the sale by the own- 
ers of a vessel of the position of master; 2 
B. &amp; C. 661; and the promises of a stock- 
holder that he will secure to the buyer of 
his stock the office of treasurer ; Guernsey v. 
Cook, 120 Mass. 501. 

Any bargain whereby, in advance of his 
appointment to an office with a salary, the 
appointee agreed with the individual making 
the appointment that he would waive all 
salary or accept something less than the 
statutory sum, is contrary to public policy 
knd void ; Miller v. U. S., 103 Fed. 413 ; Glav- 
ey v. U. S., 182 U. S. 595, 21 Sup. Ct 891, 
45 L. Ed. 1247; People v. Board of PoUce, 
75 N. Y. 38. 

The eligibility of an officer is ordinarily 
to be determined at the time of taking the 
office; State v. Moores, 52 Neb. 770, 73 N. W. 
299; Hoy v. State, 168 Ind. 506, 81 N. E. 
509, 11 Ann. Cas. 944; Kirkpatrick v. 
Brownfieia, 97 Ky. 558, 31 S. W. 137, 29 



OFFICEK 



2405 



OFU'lUKK 



li. R. A. 703, 53 Am. St. Rep. 422; State 
V. Van Beek, 87 la. 569, 54 N. W. 525, 19 
L. R. A. 622, 43 Am. St. Rep. 397 (where 
naturalization intervened after election and 
before induction). That the election is the 
test, see Roane v. Matthews, 75 Miss. 94, 21 
South. 665; State v. Lake, 16 R. I. 511, 17 
Atl. 552. Where residence in a district was 
required, it was held, that this qualification 
must exist at the time of election; State v. 
Holman, 58 Minn. 219, 59 N. W. 1006. 

The tenure of office is never more per- 
manent than during good behavior; 3 Kent 
454 ; if not protected by the constitution, 
it may be changed by the legislature; Com. 
V. Weir, 165 Pa. 284, 30 Atl. 835; but its 
term cannot be extended when fixed by the 
constitution; State v. Brewster, 44 Ohio St. 
589, 9 N. B. 849. In England, servants of the 
crown, civil as well as military, except in 
special cases otherwise pi'ovided by law, hold 
their oflice only during the pleasure of the 
crown; [1896] 1 Q. B. 116, 121. 

The right to appoint to a public office, 
when no term of office is fixed by law, car- 
ries with it as an incident the absolute pow- 
er of removal at any time, without notice 
or charges or hearing; State v. Archibald, 
5 N. D. 359, 66 N. W. 234. 

The suspension of an officer by the gov- 
ernor does not deny him the equal protec- 
tion of the laws because the governor refuses 
to produce to him the evidence against him, 
or to confront him with his accusers. He is 
not entitled to a jury trial ; Wilson v. North 
Carolina, 169 U. S. 586, 18 Sup. Ct. 485, 42 
L. Ed. 865. 

An officer cannot be removed from office 
during his second term for a violation of 
duty committed during his first term ; Thurs- 
ton V. Clark, 107 Cal. 285, 40 Pac. 435. 

The power to remove a corporate officer 
for reasonable and just cause is one of the 
common-law incidents of all corporations; 
Dill. Mun. Corp. § 179; L. R. 23 Ch. D. 1; 
but not for pre-existing cause affecting his 
capacity to hold the office; id. 

The subject is generally regulated by leg- 
islation, though there are cases in which 
the rule has been applied to officers of mu- 
nicipal corporations in the absence of statu- 
tory provisions; Richards v. Clarksburg, 30 
W. Va. 491, 4 S. E. 774; Savannah v. Gray- 
son, 104 6a. 105, 30 S. E. 693 ; State v. New 
Orleans, 107 La. 632, 32 SoMth. 22; State v. 
Noblesville, 157 Ind. 31, 60 N. E. 704. 

It was held that, in the absence of statu- 
tory provisions relating to their removal, 
public officers could not be removed by a vote 
of the town either with or without a hear- 
ing before the town or a committee thereof; 
Attorney General v. Stratton, 194 Mass. 51, 
79 N. B. 1073, 9 L. R. A. (N. S.) 572, 120 
Am. St. Rep. 527, 10 Ann. Gas. 883. Wherfr 
the charter of a borough provided that its 
president be elected by the electors, and 



that officer was removed by the governor and 
afterwards was appointed by the board of 
aldermen to fill the vacancy caused by his 
own removal, he was held eligible to fill it; 
People V. Ahearn, 60 Misc. 613, 113 N. T. 
Supp. 876. 

The act of a de facto officer is binding on 
the public ; McDowell v. U. S., 159 V. S. 596, 
16 Sup. Ct. Ill, 40 L. Ed. 271. Persons com- 
ing into a public office to transact business, 
who find a person in charge of it, are not 
bound to ascertain his authority so to act. 
To .them he is an officer de facto, and so far 
as they are concerned, de jure; Nofire v. 
U. S., 164 TJ. S. 657, 17 Sup. Ct. 212, 41 L. 
Ed. 588; though there was no power to appoint 
him ; Erwin v. Jersey City, 60 N. J. L. 141, 37 
Atl. 732, 64 Am. St. Rep. 584. A municipal 
corporation who has paid a salary to a de fac- 
to officer who has performed the duties of an 
office while the right to it was in litigation, 
cannot be held liable therefor again to one 
who may thereafter establish his title to the 
office; Fuller v. Roberts Co., 9 S. D. 216, 
68 N. W. Rep. 308 ; the remedy is against the 
de facto officer; id.; Com'rs of Saline Co. v. 
Anderson, 20 Kan. 298, 27 Am. Rep. 171. 
See Dolan v. New York, 68 N. Y. 279, 23 Am. 
Rep. 168; but see Mayfield v. Moore, 53 111. 
428, 5 Am. Rep. 52. It is no defence to a 
prosecution tor bribery that the act under 
which the officer was bribed was unconsti- 
tutional; State V. Gardner, 54 Ohio St 24, 
42 N. B. 999, 31 L. R. A. 660. See De Facto. 

Where the settlement of a question in- 
volves the exercise of discretion and judg- 
ment, the duty is not ministerial and is be- 
yond the review of the judicial department; 
Enterprise Sav. Ass'n v. Zumstein, 67 Fed. 
1000, 15 C. C. A. 153, 37 U. S. App. 71. 

A town collector is responsible as a debtor 
and not merely as a bailee; Muzzy y. Shat- 
tuck, 1 Den. (N. Y.) 233. It is the policy 
of public laws to hold all receivers of public 
money to a very strict accountability ; TJ. S. 
V. Thomas, 15 Wall. (U. S.) 346, 21 L. Ed. 89. 
The obligation to keep safely the public mon- 
ey was said to be absolute, vnthout any con- 
dition express or impUed ; U. S. v. Prescott, 
3 How. (U. S.) 587, 11 L. Ed.' 734; but this 
was considered in TJ. S. v. Thomas, 15 Wall. 
(U. S.).347, 21 L. Ed. 89; as being too gen- 
erally expressed, the court intimating there 
that loss of funds under special circumstanc- 
es, as by an earthquake, would probably ex- 
onerate the official. In the same case it w^s 
said that it appears from all the eases (ex- 
cept that in Muzzy v. Shattuck, 1 Den. [N. 
Y.] 233) that the official bond of an officer 
is regarded as laying the foundation of a 
more stringent responsibility; but the court 
held that the forcible seizure by the rebel 
authorities in 1861 of public moneys in the 
hands of a loyal government agent, against 
his will and without fault on his part, was 



OFFICER 



2406 



OFFICBB 



a discharge from his obligation in reference 
to such moneys, three judges dissented. 

The responsibility of a public officer is de- 
termined, not by the law of bailment, but by 
the condition of his bond ; Com. v. Comly, 3 
Pa. 372. 

Where public money is lost by the failure 
of a bank ; State v. Copeland, 96 Tenn. 296, 

34 S. W. 427, 31 L. E. A. 844, 54 Am. St. 
Rep. 840; {contra, Tillinghast v. Merrill, 151 
N.-Y. 135, 45 N. E. 375, 34 L. R. A. 678, 56 
Am. St. Rep. 612) ; or a city treasurer Is rob- 
bed; Healdsburg v. Mulligan, 113 Cal. 205, 
45 Pac. 337, 33 L. R. A. 461; (contra, Board 
of Education v. Jewell, 44 Minn. 427, 46 N. 
W. 914, 20 Am. St. Rep; 586); the official being 
free from fault is not liable ; but in Fairchild 
V. Hedges, 14 Wash. 117, 44 Pac. 125, 31 L. 
R. A. 851 ; an officer was held liable for the 
safety of public moneys, lost In an insolvent 
bank, even though he was not negligent; 
and in New York the liability is very strict- 
ly maintained; Tillinghast v. Merrill, 151 
N. T. 135, 45 N. E. 375, 34 U R. A. 678, 56 
Am. St. Rep. 612. The weight of authority 
seems to be in favor of a strict accountabili- 
ty; Bush V. Johnson County, 48 Neb. 1, 66 
N. W. 1023, 32 L. R. A. 223, 58 Am. St. Rep. 
673; Fairchild v. Hedges, 14 Wash. 117, 44 
Pac. 125, 31 L. R. A. 851. 

A United States officer giving a bond for the 
safe-keeping of public moneys is liable in 
case of loss, unless it was due to overruling 
necessities or the public enemy ; loss by fire 
is no defence; his obligation determined by 
his bond; it is not a bailment; Smythe v. 
U. S., 188 U. S. 156, 23 Sup. Ct. 279, 47 L. 
Ed. 425. 

Where a subordinate officer takes the place 
of his superior in the case of death op dlsa- 
ibility, he is entitled to the same salary; 
State V. La Grave, 23 Nev. 216, 45 Pac. 243, 

35 L. R. A. 233. 

There is no federal statute expressly bear- 
ing upon removals from office, except § 13 
of the act of January 16, 1883— the Civil 
Service Act, relating to removal, etc., by 
reason of giving or refusing political contri- 
butions. The civil service rules of the execu- 
tive are but regulations imposed by him upon 
his own actions or those of hefl-ds of depart- 
ments, and do not confer upon an employe 
any property right in his office; Morgan v. 
Nunn, 84 Fed. 551. Equity has no jurisdic- 
tion over the appointment and removal of 
public officers, whether the power is vested 
in executive or administrative boards or of- 
ficers, or in a judicial tribunal; jurisdiction 
belongs exclusively to courts of law ; White 
V. Berry, 171 U. S. 366, 18 Sup. Ct. 917, 43 
L. Ed. 199. 

Equity has no jurisdiction over the ap- 
pointment or removal of public officers; the 
jurisdiction belongs exclusively to courts of 
law ; In re Sawyer, 124 U. S. 200, 8 Sup. Ct. 
482, '31 L. Ed. 402; Moulton v. Reid, 54 Ala. 



320; Fletcher v. Tuttle, 151 HI. 41, 37 N. E. 
683, 25 L. R. A. 143, 42 Am. St. Rep. 220; 
Muhler v. Hedekin, 119 Ihd. 481, 20 N. B. 
700. But equity will prevent a breach of 
trust affecting public franchises, or some il- 
legal act, under color or claim of right, af- 
fecting Injuriously the property rights of in- 
dividuals, and falling under one of the ac- 
knowledged heads of equity jurisprudence; 
People V. Canal Board, 55 N. T. 390 ; Morgan 
V. Nunn, 84 Fed. 554; and it is said that 
equity will protect the position of officers 
de facto against the interference of adverse 
claimants ; High, Inj. § 1315 ; as by enjoining 
the dispossession of an officer, by force and 
unlawfully, and compelling the defendant to 
resort to a remedy at law ; Morgan v. Nunn, 
84 Fed. 555. 

The president may remove a district at- 
torney within four years of his appointment; 
Parsons v. U. S., 167 U. S. 324, 17 Sup. a. 
880, 42 L. Ed. 185 ; where the history of the 
question is reviewed. By the repeal (act of 
1887) of the Tenure of Office Act, congress 
intended to concede to the president the pow- 
er of removal, if it ever took it from him ; id. 

In the absence of constitutional or statu- 
tory regulation, the power of appointment 
carries with it, as an incident, the power of 
removal ; Parsons v. U. S., 167 U. S. 324^ 17 
Sup. Ct. 880, 42 U Ed. 185. 

The Civil Service Act of 1891 is constitu- 
tional ; Butler v. White, 83 Fed. 578. 

Department regulations cannot enlarge or 
restrict the liability of an officer on his bond ; 
Meads v. U. S., 81 Fed. 684, 26 C. C. A. 229. 

The postmaster-general, when in the dis- 
charge of his duties, is not liable for dam- 
ages on account of official communications 
made by him within those duties, by reason 
of any personal motive that might be alleg- 
ed to have prompted his action ; Spalding v. 
Vilas, 161 U. S. 483, 16 Sup. Ct 631, 40 L. 
Ed. 780. 

The United States is not liable for the 
non-feasance or misfeasance or neglect of 
its officers ; German Bk. v. U. S., 148 U. S. 
573, 13 Sup. Ct. 702, 37 L. Ed. 564. 

A person holding two different federal 
offices cannot draw pay for both for the 
same period ; Talbot v. U. S., 10 Ct. Cls. 426. 

Congress cannot exercise the power of ap- 
pointment to office; Shoemaker v. U. S., 147 
U. S. 282, 13 Sup. Ct. 361, 37 L. Ed. 170. It 
may vest in the president the power to ap- 
point a vice-consul; U. S. v. Eaton, 169 U. 
S. 331, 18 Sup. Ct. 374, 42 L. Ed. 767. 

The act, however tortious, of an executive 
officer of a court, done under color of its 
process, is to be regarded as a proceeding 
of the court, with which courts of concurrent 
jurisdiction will not interfere; American 
Ass'n v. Hurst, 59 Fed. 1, 7 C. C. A. 598, 16 
U. S. App. 325. 

An act directing the employment of vete^ 
ans in the labor service of the common- 



OFFICER 



2407 



OFFICER 



wealth, etc., in preference to other persons, 
if i such veterans are qualified for the work, 
is constitutional; Opinion of the Justices, 
1.66 Mass. 589, 44 N. E. 625, 34 L. R. A. 58, 
three judges dissenting. 

One who accepts an office incompatible 
with one already held, ipso facto vacates the 
first office; Northway v. Sheridan, 111 Mich. 
18, 69 N. W. 82; People v. Board of Fire 
Com'rs, 76 Hun 146, 27 N. T. Supp. 548. 
Where the mayor of Detroit was elected gov- 
ernor of Michigan, it was held that he there- 
by vacated the former office; Attorney Gen- 
eral V. Common Council, 112 Mich. 145, 70 
N. W. 450, 37 L. R. A. 211. In Louisiana a 
constitutional officer may also hold a munici- 
pal office ; State v. Montgomery, 25 La. Ann. 
138. See Office. 

A woman is eligible to the office of court 
clerk where there is no provision expressly 
requiring such clerk to be a man, though 
the word "he" is used in the constitution of 
the state in declaring who is eligible to of- 
fice; State v. Hostetter, 187 Mo. 636, 39 S. 
W. 270, 38 L. R. A. 208, 59 Am. St. Rep., 515. 

The officers of a corporation are not, as 
regards their criminal liability, a single per- 
son in respect to corporate acts, and there- 
fore they may be guilty of conspiracy ; Peo- 
ple V. Duke, 19 Misc. 292, 44 N. Y. Supp. 
330. 

The word "vacant" has no technical nor 
peculiar meaning; it flieans empty, unoccu- 
pied ; as applied to an office — without an In- 
cumbent. An existing office without an in- 
cumbent is vacant, whether it be an old or a 
new one; Stocking v. State, 7 Ind. 326; 
Com. V. McAfee, 232 Pa. 36, 81 Atl. 85. 
Where a new office has been created and has 
not been filled, a vacancy exists; State v. 
Irwin, 5 Nev. Ill ; Stocking v. State, 7 Ind. 
326; but see O'Leary v. Adler, 51 Miss. 28. 
Where a newly appointed officer fails to qual- 
ify as required by law, there is usually not 
a vacancy, if, by law, the last incumbent 
holds over; State v. Brewster, 44 Ohio St. 
589, 9 N. E. 849; State v. Bowden, 92 S. C. 
399, 75 S. B. 866 ; but it has been held that 
in such case there is a vacancy ; State v. 
Beard, 34 La. Ann. 273. 

Statutory provisions requiring a bond and 
oath of office are usually only directory ; it 
will suffice if the oath be taken and the 
bond given before a vacancy has been de- 
clared; Sprowl V. Lawrence, 33 Ala. 674; 
Cawley v. People, 95 111. 249; Chicago v. 
Gage, 95 111. 593, 35 Am. Rep. 182; but see 
People V. McKinney, 52 N. Y. 374; Johnson 
V. Mann, 77 Va. 265 ; State v. Ruff, 4 Wash. 
234, 29 Pac. 999, 16 L. R. A. 140. 

At common law, the refusal of a public 
officer to accept office was indictable ; 4 Term 
778; such is still the rule; People v. Wil- 
liams, 145 111. 573. Mandamus will lie to 
compel a person to enter upon the discharge 
of the duties of an office; Edwards v. TJ. S., 
103 U. S. 471, 26 L. Ed. 314 ; People y. WU- 



liams, 145 111. 573, 33 N. B. 849, 24 L. R. A. 
492, 36 Am. St. Rep. 514. 

The term of office and the functions of a 
public officer may be ended' by resignation 
but he cannot resign until he Is qualified; 
Miller v. Board of Sup'rs, 25 Cal. 93. A 
resignation of an office should be tendered 
to the officer or body having authority to fill 
the vacancy by appolQting a successor; Ed- 
wards V. U. S., 103 U. S. 471, 26 L. Ed. 314; 
Thompson v. U. S., 103 U. S. 480, 26 L. Ed. 
521 ; State v. Pollner, 18 Ohio Cir. Ct R. 304; 
State V. Super. Ct, 46 Wash. 616, 91 Pac. 

4, 12 L. R. A- (N. S.) 1010, 123 Am. St. Rep. 
948, 13 Ann. Cas. 870; People v. Williams, 

145 111. 573, 33 N. B. 849, 24 L. R. A. 492, 
36 Am. St. Rep. 514 ; and it is held in many 
cases that an acceptance of the resignation 
is necessary; id.; State v. Stickley, 80 S. C. 
64, 61 S. B. 211, 128 Am. St. Rep. 855, 15 Ann. 
Cas. 136; Coleman v. Sands, 87 Va. 689,, 13 

5. B. 148 (this was a registrar of elections 
who after resignation not being accepted was 
compelled by mandamus to register a voter) ; 
U. S. V. Green, 53 Fed. 769 (where an alder- 
man resigned after service of mandamus to 
secure payment of a judgment against the 
city and as the constitution provided that 
all elective and appointive officers should 
hold until their successors were appointed 
and qualified, the alderman was held guilty 
of contempt) ; Patrick v. Hagins, 41 S. W. 
31, 19 Ky. L. Rep. 482 (police judge, who 
after resignation appeared not to have been 
accepted, was compelled by mandamus to put 
a name on the official ballot) ; so it was held 
under a Kentucky statute that a resignation 
not tendered to one having power to appoint 
the successor is a nullity ; Shacklett v. Island, 

146 Ky. 798, 143 S. W. 369, Ann. Cas. 1913C, 
602; and in another jurisdiction that it is 
the general rule that to make a resignation 
effective, in the absence of statute, it should 
be tendered to the appointing power, or if 
the office is elective to the power authorized 
to call an election to fill the vacancy ; Nome 
V. Rice, 3 Alaska 602 ; and a resignation im- 
plies an expression by the incumbent in some 
form, express or implied of the intention to 
surrender, renounce, or relinquish the office, 
and an acceptance by competent and lawful 
authority; id. 

The common law rule that the resignation 
of a public officer is not complete until the 
proper authority accepts it or does something 
equivalent thereto, is held to be the rule; 
State V. Clayton, 27 Kan. 442, 41 Am. Rep. 
418. Where no particular mode of resigna- 
tion is prescribed by statute and the appoint- 
ment is not by deed, a resignation may be by 
parol; Clark v. Board of Education, 112 
Mich. 656, 71 N. W. 177 ; Van Orsdall v. Haz- 
ard, 3 Hill (N. T.) 243; State v. Ferguson, 
31 N. J. L. 107 (overseer of highways), 
where Beasley, C. J., referring to TJ. S. v. 
Wright, 1 McLean 512, Fed. Cas. No. 16,775, 
said that the remark of McLean, J., to the 



OFFICER 



2408 



OFFICKB 



effect that a civil officer could resign at any 
time and the executive could not compel 
him to remain in office, could hai'dly be ap- 
plied "to the clafes of officers who are elected 
by the people and whose services are abso- 
lutely necessary to carry on local govern- 
ment." He considered that the common law 
rule was in force that a person elected could 
not decline to serve. The view that a resig- 
nation must be accepted by "the proper au- 
thority" was followed in Fryer v. Norton, 
67 N. J. L. 537, 52 Atl. 476, where the officer 
was a member of a borough council, an elec- 
tive office, with power in the mayor to fill 
vacancies with concurrence of the council. It 
was held that both must concur in accepting 
the resignation. The appointment of a suc- 
cessor will be deemed an acceptance of the 
resignation; Gates v. Delaware County, 1^ 
la. 405. 

On the other hand it is held in many cases 
that the acceptance is not necessary and 
that a civil officer has the right to resign at 
any time, without consent of the President, 
who has no power to re^se it and to require 
the officer to continue in office; U. S. v. 
Wright, 1 McLean 509, Fed. Cas. No. 16,775. 
It is said that an unconditional resignation 
of an officer, transmitted with the intent 
that it be delivered to the authority entitled 
to receive it, becomes complete without any 
acceptance ; State v. Fltts, 49 Ala. 402 ; Peo- 
ple V. Porter, 6 Cal. 26; and that such an 
unconditional resignation to take effect im- 
mediately becomes effective when deposited 
in the post office properly addressed to the 
person authorized to receive it; State v. 
Clarke, 3 Nev. 566 (United States district at- 
torney). In the case of a drainage commis- 
sioner (appointed by a county judge) who re- 
signed, no acceptance was required and the 
Ikw continuing an officer until his successor 
is qualified was held to apply only to the 
expiration of the term and not to the resig- 
nation; Olmsted v. Dennis, 77 N. Y. 878. 
The moment his resignation was given to 
the officer who appointed him it was effec- 
tive and the office became vacant ; id. 

A civil officer has the right to resign his 
office and had such right at common law and 
it is recognized in the constitution; State v. 
Blakemore, 104 Mo. 340, 15 S. W. 960, re- 
Versing 40 Mo. App. 406; and any doubt in 
other jurisdictions as to the right to resign 
without concurrence of the officer or body 
which has the power to act upon it is re- 
moved in this state by the constitutional 
recognition of the right of resignation ; State 
V. Bus, 135 Mo. 325, 36 S. W. 636, 33 L. R. 
A. 616. In that case a school director was 
appointed a deputy sheriff and it was held 
that the acceptance of a second office oper- 
ated as a resignation of the first if they 
were Incompatible. Whether they were so 
was the main question and it was decided 
that they were not 



In most of the cases which hold that an 
acceptance Is necessary to complete the res- 
ignation stress is laid upon the common law 
doctrine that not only offices of local char- 
acter, the creation of a vacancy in which 
would cause public inconvenience, were not 
lightly to be abandoned at the mere will of 
the incumbent but frequent allusion is made 
to the fact that it was compulsory to serve 
in such offices and that not only was it 
made difficult to resign an office but also 
to decline accepting one. This view is 
strongly presented by the United States Su- 
preme Court in Edwards v. U. S., supra, and 
also in the New Jersey cases. 

In the cases which hold that an acceptance 
is not necessary, the offices in question were 
both elective, as of a county judge, and ap- 
pointive, 'as United States district attorney 
or collector of internal revenue, and there 
seems to be no distinction drawn between 
them, nor is any expressed with respect to 
the character or importance of the office 
since the cases which adhere to the right of 
resignation without acceptance include such 
offices as school director and drainage com- 
missioners. No ,distinx?t theory therefore 
can be evolved from the cases which will rec- 
oncile them though It has been suggested by 
one writer on the subject that the rule re- 
quiring acceptance is usually applied to local 
offices in which vacancies would occasion 
special public inconvenience and that the ac- 
ceptance is not necessary where the public 
interest is not directly involved ; Am. &amp; Engl. 
Enc. 1403. While this suggestion has the 
merit of plausibility, it cannot be said to 
have the support of any judicial authority 
and the cases cannot be aligned in accord- 
ance with it or indeed v?ith any general rule. 

An unconditional resignation transmitted 
with intent that it be delivered to the proper 
authority cannot be recalled; State v. Pitts, 
49 Ala. 402 ; or withdrawn after it has been 
received ; State v. Hauss, 43 Ind. 105, 13 Am. 
Rep. 384; but a contingent or prospective 
resignation can be withdrawn at any time 
before acceptance; State v. tfowler, 160 Ala. 
186, 48 South. 985, 135 Am. St. Rep. 91; 
State V. Murphy, 30 Nev. 409, 97 Pac. 391, 
720, 18 L,. R. A. (N. S.) 1210; or after accept- 
ance, with the consent of the authority ac- 
cepting, where no new rights have interven- 
ed; Biddle V. Willard, 10 Ind. 62; Bunting 
v. Willis, 27 Grat. (Va.) 144, 21 Am. Rep. 
338 ; State v. McGrath, 64 Mo. 139 ; State v. 
Beck, 24 Nev. 92, 49 Pac. 1035 ; but where the 
office is once surrendered or vacated by the 
acceptance of a second office in violation of 
law the officer cannot be restored by resign- 
ing the second ; Bishop v. State, 149 Ind. 223, 
48 N. E. 1038, 39 L. R. A. 279, 63 Am. St 
Rep. 270. 

A resignation may be withdrawn If not ac- 
cepted, and is not effective though a 'suc- 
cessor has been appointed, if transmitted 



OFFICER 



2409 



OFFICER 



without the officer's consent, and a condition- 
al resignation cannot be accepted except on 
the terms made by It, and In the absence of 
a corrupt bargain an officer may attach, as a 
condition, the appointment of a certain other 
person as his successor; State v. Huff, 172 
Ind. 1, 87 N. E. 141, 139 Am. St. Rep. 355. 
One who resigns an office, manifesting his 
Intention by an unequlvocable act, may re- 
tract or withdraw it before it Is accepted or 
any act done to fill the vacancy; People v. 
Board of Police, 26 Barb. (N. Y.) 487; and 
where there Is no formal resignation there 
must be some conduct Inconsistent with the 
retention of office and a formal acceptance 
of the resignation or the appointment of an- 
other to flu the vacancy; id. A mere inten- 
tion to resign is ineffective until properly 
manifested; State v. Pollner, supra. There 
must be an intention to relinquish a part of 
the term, accompanying the act of relinquish- 
ment; State V. Ladeem, 104 Minn. 252, 116, 
N. W. 486, 16 L. R. A. (N. S.) 1058 ; and if, 
obtained by duress the resignation is voida- 
ble and may be repudiated by an Immediate 
refusal to surrender the office ; id. 

A resignation of a public office by impli- 
cation may take place by abandonment of 
official duties and to complete it the accept- 
ance may be manifested by an appointment 
of another to fill the place ;, People v. Spenc- 
er, 101 111. App. 61. An dfflcer may resign 
pending proceedings tor his removal for mal- 
feasance in office; State v. Dart, 57 Minn.! 
201, 59 N. W 190; Roberts v. Paul, 50 W. 
Va. 528, 40 S. E. 470. 

• Term of office means "a fixed and defi- 
nite period of time;" 30 Am. &amp; E. Corp. 
Cas. 351. When no tifae is mentioned in 
the law from which the term of office be- 
gins. It runs from the date of election; State 
V. Constable, 7 Ohio 7, pt. 1. 

Officers who are compelled to rely upon 
and act through subordinate officers and 
employers are not ordinarily responsible to: 
the government for their misfeasance or non-. 
feasance; People v. Coler, 31 App. Dlv. 523,i 
52 N. Y. SUpp. 197. 

It is now generally agreed that, in the ab- 
sence of any statute to the contrary, the 
president, together with the secretary or 
cashier, are presumed, in favor of third per- 
sons purchasing in good faith and for value, 
to have power to convey property of the 
corporation in its name, in the ordinary 
course of its business. Other officers have 
not this power ; Abbott's Trial Evidence 52 ; 
Louisville, N. A. &amp; C. R. Go. v. Louisville 
Trust Co., 174 tj. S. 552, 19 Sup. Ct. 817, 43 
L. Ed. 1081. The president of a corporation 
is recognized as its business head, and any 
contracts pertaining to its affairs, within the 
general power of such officer, executed by 
him on its behalf, will, in the absence of 
proof to the contrary, be presumed to have 
been done by authority; Lloyd &amp; Co. v. 



Matthews, 223 111. 477, 79 N. E. 172, 7 L. R. 
A. (N. S.) 376, 114 Am. St. Rep. 346; Little 
SawmlU Val. T. or P. Road Co., 194 Pa. 144, 
45 Atl. 66, 75 Am. St. Rep. 690. But in some 
eases it is held that general authority to act 
for the corporation must be shown ; Lyndon 
Mill Co. V. Biblical Inst, 63 Vt. 581, 22 Atl. 
575, 25 Am. St. Rep. 783; Mathias v. Springs 
Ass'n, 19 Mont. 359, 48 Pac. 624. 

As to officers of a corporation as parties 
in patent cases, see Infeingement. As to 
service on corporation officers, see FoEjacGN 

COBPOBATIONS. 

See Mandamus; Quo Wabbanto. 

See Mechem, Publ. Off.; Service; Tenure 
or OrHCE; Office; Cashier; Director; 
Longevity Pay; Loan; National Banks, 
and the titles of various public and corpora- 
tion officials. 

OFFICER DE FACTO. One who has the 
reputation of being the offlcet he assumes to 
be, and yet is not a good officer in point of 
law ; 6 East 368. See De Facto. 

OFFICIAL. In Old Civil Law. The person 
who was the minister of, or attendant upon, 
a magistrate. 

In Canon Law. The person to whom the 
bishop generally commits the charge of 
his spiritual jurisdiction bears this name. 
Wood, Inst. 30, 505; Merlin, Rupert. 

OFFICIAL PRINCIPAL. See Court of 
Arches. 

OFFICIAL SOLICITOR TO THE COURT 
OF CHANCERY. An officer in England 
whose function is' to protect the suitors' 
fund, and to administer under the direction 
of the court, so much of it as comes under 
the spending power of the court. 

OFFICIAL TRUSTEES OF CHARITIES. 

Charity commissioners in England, crea:ted 
by 16 &amp; 17 Viet. e. 137, and amended by 18 
&amp; 19 Vict. c. 24. 

OFFICIAL USE. An active use before tHe 
statute of uses, which Imposed some duty 
on the legal owner or feoffee to uses, as a 
conveyance to A with directions for him to 
sell the estate and distribute the proceeds 
amongst B, C, and D. To enable A to pe^-- 
form this duty he had the legal possession 
of the estate to be sold. Wharton. 

OFFICIARIIS NON FACIENDIS VEL 
AMOVENDIS. A writ addressed to the mag- 
istrates of a corporation, requiring them not 
to make such a man an officer, or to put 
one out of the office he has, until inquiry is i 
made of his manners, etc. Reg. Oiig. 126. 

OFFICINA JUSTITI/E. The workshop or 
office of justice. In English Law. The chan- 
cery was formerly so called, because all 
writs Issued from it, under the great seal, 
returnable into the courts of common law. 
See Chancery. ; 

OFFICIO, EX, OATH OF. An oalji 
whereby a person might be obliged to make 



OFFICIO, EX, OATH OP 



2410 



OHIO 



any prespntinent of any crime or offence, 
or to confess or accuse himself of any crim- 
inal matter whereby he might he liable to 
any censure, penalty, or punishment. 3 Bla. 
C!om. 447. 

OFFICIOUS WILL. A testament by 
which a testator leaves his property to his 
family. Sand. Just Inst. 207. 

OFFSET. See Set-Off. 

OFFSPRING. The word offspring in its 
proper and natural sense extends to any de- 
gree of lineal descendants and has the same 
meaning as issue. 82 L. J. Ch. 373. 

OHIO. One of the states of the Ameri- 
can Union. 

MassachusettB, Connecticut and Virginia claimed, 
under tlieir respective charters, tlie territory lying 
northwest of the river Ohio. At the solicitation of 
the continental congress, these claims were, soon 
after the close of the war of independence, ceded to 
the United States. Virginia, however, reserved the 
ownership of the soil of three million seven hundred 
thousand acres between the Scioto and the Little 
Miami rivers, for military bounties to the soldiers 
of her line who had served in the revolutionary 
war ; and Connecticut reserved three million six 
hundred and sixty-six thousand acres in north- 
ern Ohio, now usually called the "Western Reserve." 
The history of these reservations, and of the several 
"purchases" under which lE^nd-titles have been ac- 
quired in various parts of the state, will be found 
in Albachi's Annals of the West, in the Preliminary 
Sketch of the History of Ohio, in the first volume of 
Chase's Statutes of Ohio, and in Swan's Land Laws 
of Ohio. The conflicting titles of the states having 
been extinguished, congress, on July. 13, 1187, passed 
the celebrated ordinance for the government of the 
territory northwest of the river Ohio. 1 Curw, Rev. 
Stat, of Ohio 86. It provided for the equal distribu- 
tion of the estates of intestates among their chil- 
dren, gave the widow dower as at common law, 
regulated the execution of wills and deeds, secured 
perfect religious toleration, the right of trial by 
jury, jud^iciai proceedings according to the course 
of the common law, the benefits of the writ of 
habeas corpus^ security against cruel and unusual 
punishments, the right of reasonable bail, the in- 
violability of contracts and of private property, and 
declared that "there shall be neither slavery nor 
involuntary servitude in the said territory, other- 
wise than in the punishment of crimes whereof the 
party shall have been duly convicted." 

These provisions have been, in substance. Incor- 
porated into the constitution and laws of Ohio, as 
well as of the other states which have since been 
formed within "the territory." The ordinance has 
been held to l}e a mere temporary statute, which 
was abrogated by the adoption of the ' constitution 
of the United States. Palmer v. Cuyahoga Co., 3 
McLean 226, Fed, Cas. No. 10,688; Pollard v. Hagan, 
3 How. (U. S.) 212, 11 L. Ed. 565 ; Strader v. Grah- 
am, 10 How. (U. S.) 82, 13 L. Ed. 337. See Ordinance 
OF 1787. 

On the 30th of October, 1802, congress passed an 
act malcing provision for the formation of a state 
constitution, under which, in 1803, Ohio was ad- 
niltted into the Union, under the name of "the 
State of Ohio." This constitution was never sub- 
mitted to a vote of the people. It continued to be 
the organic law of Ohio until September 1, 1851, 
when it was abrogated by the adoption of the 
present constitution. 

The bill of rights which forms a part of this con- 
stitution contains the provisions common to such 
Instruments in the constitutions of the different 
states. Such are the prohibitions against , any laws 
Impiairlhg the right of peaceably assembling to con- 
sult tor the common good, to bear arms, to have a 



trial by Jury, to worship according to the dictates 
of one's own conscience, to have the benefit of the 
writ of habeas corpus, to be allowed reasonable bail, 
to be exempt from excessive fines and cruel and 
unusual punishment, not to be held to answer for a 
capital or otherwise infamous crime unless o» pre- 
sentment or indictment of a grand jury, to have a 
copy of the indictment, the aid of counsel, compul- 
sory process for witnesses, a speedy and public 
trial, to be privileged from testifying against one's 
self, or from being twice put in jeopardy for the 
same offence. Provision is also made against the 
existence of slavery, against transporting offenders 
out of the state, against imprisonment for debt 
unless in cases of fraud, against granting heredi- 
tary honors, against quartering soldiers in private 
houses, for the security of persons from unreason- 
able arrest or searches, and for the freedom of 
speech and the press. Extensively amended in 1912. 

OIL. Petroleum or rock oil is a mineral 
substance obtained from the earth by pro- 
cess of mining, and the land from which It 
is obtained is called mining land; Kelly v. 
Oil Co., 57 Ohio St. 317, 49 N. B. 399, 39 L. 
R. A. 765, 63 Am. St Rep. 721 ; Gill v. Wes- 
ton, 110 Pa. 313, 1 Atl. 921. It is a part 
of the realty; id.; Appeal of Stoughton, 88 
Pa. 198. It was held not a mineral; 23 L. 
D. 222. This was reversed by act of con- 
gress which made oil lands patentable the 
same as placers; 23 L. D. 222, reversed by 
25 L. D. 351. 

But it is held that a reservation of "all 
timber suitable for sawing," also all miner- 
als," will not include petroleum, the ordi- 
nary meaning of the word mineral overcom- 
ing the technical meaning ; Dunham v. Kirk- 
patrick, 101 Pa. 36, 47 Am. Rep. 696. 

A property owner has a right to drill for 
oil through a stratum of coal belonging to 
another; Chartiers B. C. Co. v. Mellon, 152 
Pa. 286, 25 Atl. 597,, 18 L. R. A. 702, 34 Am. 
St. Rep. 645. A contract giving the right to 
explore for oil, and if any be found, to sink 
wells, is a license only ; Dark v. Johnston, 
55 Pa. 164, 93 Am. Dec. 732. A lease of land 
with the right to bore for oil is a lease and 
not a sale of the oil; Duffield v. Hue, 129 
Pa. 94, 18 Atl. 566. 

Title under an oil and gas lease is in- 
choate and for purposes of exploration only 
until oil or gas is found. If none is found 
no estate vests in the lessee, and his title 
ends when the unsuccessful search is aban- 
doned. If found then the right to produce 
becomes a vested right. 

Where a lessee drilled a dry well, and 
removed substantially all his machinery 
therefrom, and did nothing further in the 
search, and asserted no title for nine years, 
until after a lease has been made to other 
parties, it was assumed as matter of law 
that the first lease was abandoned ; Calhoon 
v. Neely, 201 Pa. 97, 50 Atl. 967. 

Oil produced from wells on lands leased 
for oil purposes during the owner's life is 
income; Woodburn's Estate, 138 Pa. 606, 21 
Atl. 16, 21 Am. St Rep. 932. Where a life 
tenant united with, a remainder-man in 
leasing new oil territory, the court appointed 



OIL 



2411 



OLD STYLE 



a trustee to hold and invest the royalties and 
pay the Income to the life tenant, and at 
her death, the principal to the remainder- 
man; Blakley v. Marshall, 174 Pa. 425, 34 
Atl. 564. A life tenant cannot lease new oil 
territory, never operated before her title ac- 
crued; Marshall v. Mellon, 179 Pa. 371, 36 
Atl. 201, 35 L. R. A, 816, 57 Am. St. Eep. 601. 

When oil reaches a well and is produced 
at the surface, it becomes personal property ; 
Kelly v.. Oil Co., 57 Ohio St. 317, 49 N. B. 
399, 39 L. R. A. 765, 63 Am. St. Kep. 721. 
As to whether one holding oil on storage who 
converts it to his use is guilty of larceny as 
bailee, see Hutchison v. Com., 82 Pa. 472. 

It is a proper subject for police regula- 
tion; Red "C" Oil Co. v. Board of Agricul- 
ture, 222 U. S. 380, 32 Sup. Ct. 152, 56 L. Ed. 
240. 

See Bryan, Petroleum and Natural Gas; 
as to oil leases, see Evans v. Trust Co. 
(Ind.) 29 N. E. 398, 31 L. R. A. 673; as to 
UabiUty for rent on oil leases, see Kunkle v. 
Gas 'Co., 165 Pa. 133, 30 Atl. 719, 33 L. R. 
A. 847 ; as to assignment of an oil lease, see 
Woodland Oil Co. v. Crawford, 55 Ohio St. 
161, 44 N. E. 1093, 34 ,L. R. A. 62. See Nat- 
tTEAi, Gas; Eminent Domain; Pipe Lines; 
Mines and Mining; Waste. 

OKLAHOMA. One of the United States, 
admitted to the Union November 16, 1907. 

By the enabling Act of June 16, 1906, a constitu- 
tion was adopted and a state government establish- 
ed covering the territory previously known' as Okla- 
homa and the Indian Territory. The enabling act 
contains the provision that nothing contained in the 
state constitution shall be construed to limit or 
affect the right or authority of the government of 
the United States to make any law or regulation re- 
specting the Indians, their lands, property or other 
rights by treaties, agreement, law or otherwise 
which it would have been competent to make if the 
act had never been^ passed. The purpose of this 
proviso was held not* to repeal by implication exist- 
ing laws made for Indian Territory ; Ex parte 
Webb, 225 U. S. 683. 32 Sup. Ct. 769, 56 L. Ed. 1248. 
The portion of the state which had been called 
Indian Territory did not cease to be Indian coun- 
try; U. S. Exp. Co. V. Friedman, ISl Fed. 679, 112 
C. C. A. 219; Hallowell v. U. S., 221 U. S. 317, 31 
Sup. Ct. B87. 55 L. Ed. 750. It includes all that 
portion of the United States known as the Indian 
Territory. 

See Indian Tbibb. 

OLD AGE PENSIONS. See Pension. 

OLD BAILEY. A prison in Londont so 
called from the ancient bailey between Lud- 
gate and Newgate. Bailey was the external 
wall of defence about a feudal castle. 

OLD NATURA BREVIUM. The title of 
an English book, so called to distinguish it 
from Fitzherbert's work entitled Natura 
Brevium, after the publication of the latter. 
The Old Natura Brevium contains the writs 
most in use in the reign of Edward III., to- 
gether with a short comment on the applica- 
tion and properties of each of them. 

OLD STYLE. The mode of reckoning time 
in England until the year 1752, when the 



New Style, at present in use, and which bad 
prevailed in the Roman Catholic countries 
of the continent since 1582, was introduced. 
According to the O. S., the year commenced 
on the 25th of March and every fourth year 
was a leap-year, instead of, as now, but 97 
leap years in 400 years ; Moz. &amp; W. 

OLD TENURES. The title of a small 
tract, which contains an account of the vari- 
ous tenures by which land was holden in 
the reign of Edward III. It was published 
in 1719, with notes and additions, with the 
11th edition of the First Institutes, and re- 
printed in 8vo in 1764, by Serjeant Hawkins^ 
in a selection of Coke's Law Tracts. 

OLEOMARGARINE. Artificial butter 
made out of animal fat, milk, and other 
substances; imitation butter. Anderson's 
L. Diet. 

Oleomargarine is a recognized .article of 
food and commerce, and being thus a law- 
ful article of commerce it cannot be wholly 
excluded from importation into a state from 
another state where it was manufactured, 
though the former .state may so regulate the 
introduction as to insure purity, without 
having the power totally to exclude it; 
SchoUenberger v. Pennsylvania, 171 U. S. 1, 
18 Sup. Ct. 757, 43 L. Ed. 49. This case was 
followed in People v. Crawford Co., 62 Misc. 
240, 114 N. T. Supp. 945i, where it was held 
that the la,w may validly prescribe that it 
shall be sold for what it actually is and that 
the Introduction of substances merely to 
make it resemble butter and sell therefor 
may be prohibited. 

The New Hampshire act prohibiting the 
sale of oleomargarine unless it is of a pink 
color is invalid as being, in necessary ef- 
fect, prohibitory. The act is not an inspec- 
tion law, it provides for no inspection, and 
apparently none was intended. It is an ab- 
solute prohibition of the sale of an article of 
commerce; Collins v. New Hampshire, 171 
U. S. 30, 18 Sup. Ct. 768, 43 L. Ed. 60. 

The Massachusetts act of March 10th, 
1891, "to prevent deception in the manu- 
facture and sale of imitation butter," in 
its application to the sales of oleomargarine 
artificially colored and brought into Massa- 
chusetts, is in conflict with the commerce 
clause of the federal constitution; Plumley 
V. Massachusetts, 155 U. S. 461, 15 Sup. Ct. 
154, 39 L. Ed. 223. 

An act prohibiting the manufacture and 
sale of oleomargarine of any shade or tint 
of yellow is invalid, it appearing that the 
product was perfectly healthful and free 
f roiji coloring matter and that the result of 
the act was not to prevent fraud or to aid 
the public health, but to prohibit making a 
wholesome article; State v. Hanson, US 
Minn. 85, 136 N. W. 412, 40 L. R. A. &lt;N. S.) 
865, Ann. Cas. 1913B, 405. 

An act forbidding the manufacture and, 
sale of oleomargarine, made in imitation of 



OLEOMARG ARINE 



2412 



OMNIBUS 



yellaw butter, is a valid exercise of the po- 
lice power; Com. v. Huntley, 156 Mass. 236, 
30 N. E. 1127, 15 L. R. A. 839. 

A state has the power to determine wheth- 
er to permit the manufacture and sale of 
oleomargarine within the state or entirely 
to forbid the same, so long as the legislation 
is therein confined; Powell v. Pennsylvania, 
127 U. S. 678, 8 Sup. Ct. 992, 1257, 32 L. Ed. 
253, explained in Schollenberger v. Pennsyl- 
vania, 171 U. S. 16, 18 Sup. Ct. 757, 43 L. Ed. 
49. 

Under its taxing power and in connec- 
tion with the internal revenue system, con- 
gress has passed a law defining butter and 
oleomargarine and imposing a tax upon and 
regulating the sale, etc., of oleomargarine. 
See U. S. V. Eaton, 144 U. S. 677, 12 Sup. Ct. 
764, 36 L. Ed. 591. 

Such legislation does not infringe the con- 
stitutional guaranty of due process of law 
because its effect may be to suppress the 
manufacture of the article; McCray v. U. 
S., 195 U. S. 27, 24 Sup. Ct: 769, 49 L. Ed. 78, 
1 Ann. Cas. 561 ; Cliff v. U. S., 195 U. S. 159, 
25 Sup. Ct 1, 49 L. Ed. 139. 

In many of the states the manufacture 
and sale of this substance are prohibited by 
statute, unless made in a specified form and 
In such manner as will inform the buyer as 
to its real character. 

In England, all pactages must be marked, 
as must each parcel exposed for sale. See 
[1895] 2 Q. B. 657. 

See Oeiqinal Package. 

OLERON, LAWS OF. See Code. 

OLIGARCHY (Gr. i^iiyo; and ap%^. The gov- 
ernment of a few). A name given to des- 
ignate the power which a few citizens of 
a state have usurped, which ought by the 
constitution to reside In the people. Among 
the Romans, the government degenerated 
, several times into an oligarchy, — for exam- 
ple, under the decemvirs, when they became 
the only magistrates in the commonwealth. 
See Government. 

OLOGRAPH. See HOLOGEAPH ; Wni. 

OMISSION. The neglect to perform what 
the law requires. 

When a public law enjoins on certain offi- 
cers duties to be performed by them for the 
pubUc, and they omit to perform them, they 
may be indicted : for example, supervisors of 
the highways are required to repair the pub- 
lic roads; the neglect to do so will render 
them liable to be Indicted. 

When a nuisance arises ia consequence of 
an omission, it cannot be abated, If it b.e a 
private nuisance, without giving notice, when 
such notice can be given. See Commission; 
Nuisance. 

OMNIA PERFORMAVIT (Lat. he has done 
all). In Pleading. A good plea in bar where 
all the covenants are in the affirmative, 
i'.ailey v. Rogers, 1 Greenl..(Me.) 189. 



OMNIBUS. For all; containing two or 
more independent matters. Applied to a 
count in a declaration, and to a bill of legis- 
latipn, and perhaps to a 61ause in a will, 
which comprises more than one general sub- 
ject. Yeager v. Weaver, 64 Pa. 428 ; Parkin- 
son v. State, 14 Md. 193, 74 Am. Dec. 522. 
See In Omnibus. 

OMNIUM (Lat). In Mercantile Law. A 
term used to express the aggregate value of 
the different stock in which a loan is usually 
funded. 2 Esp. 361; 7 Term 630. 

ON. As denoting contiguity or neighbor- 
hood, it may denote near to as well as at; 
Bumam v. Banks, 45 Mo. 349; and has been 
held to. be interchangeable with upon. Sut- 
ton V. Com., 85 Va. 128, -7 S. B. 323. It is 
not equivalent to immediately on ; Masters v. 
McHolland, 12 Kan. 25. 

ON ACCOUNT OF WHOM IT MAY CON- 
CERN, FOR WHOM IT MAY CONCERN. A 

clause in policies of insurance, under which 
all are insured who have an insurable in- 
terest at the time of effecting the insurance 
and who were then contemplated by the pai;; 
ty effecting the Insurance. 2 Pars. Marit 
Law 30. 

ON ALL FOURS. A phrase used to ex- 
press the idea that a case at bar is in all 
points similar to another. The one is said 
to be on all fours with the other when the 
facts are similar and 'the same questions of 
law are involved. See In Omnibus. 

ON BEHALF. Where security is to be 
given on behalf of a person it cannot be 
given by the person himself. L. R. 4 C. P. 
235. 

ON BOARD. A devise of goods on board 
a ship may pass goods on boasd at the. date 
of the will, but afterwards removed. 1 Ves. 
Sen. 271. 

ON CALL. There Is no legal difference 
between an obligation payable "on demand" 
and one payable "on call." Bowman v. Mc- 
Chesney, 22 Graft (Va.) 609. 

ON DEMAND. A promissory note paya- 
ble on demand is a present debt and is pay- 
able without demand.. Young v. Weston, 
39 Me. 494. It is payable the instant the 
note is signed ; no demand is necessary prior 
to bringing an action; 2 M. &amp; W. 461 ; 34 Oh. 
D. 566. 

ON STAND. A term used in the law of 
landlord and tenant A tenant of a farm 
who cannot carry away manure but has the 
right to sell it to his successor, is said to 
have the right of on stand on the farm for 
it till he can sell it; he may maintain tres- 
pass for the taking of it by the incoming ten- 
ant before it is sold. See 16 East 116. 

ONE MAN COMPANY. See Promoters. 

ONERANDO PRO RATA PORTIONIS. A 

writ that lay for a joint tenant, or tenant 



ONERANDO PRO RATA PORTIONIS 2413 



ONUS PROBANDI 



In common, who was distrained for more 
rent tban his proportion of the land came 
to. Keg. Orlg. 182. 

ONERARI NON (Lat. ought not to be bur- 
dened). In Pleading. The name of a plea by 
which the defendant says that he ought not 
to be charged. It is used in an action of 
debt; 1 Saund. 290, n. A. 

ONERATIO. A lading; a cargo. 

ONERIS FERENDI JUS(Lat of bearing a 
burden). In Civil Law. The name of a servi- 
tude by which the wall or pUlar of one 
house is bound to sustain the weight of the 
buildings of the neighbor. 

The owner of the servient building is 
bound to repair and keep it sufficiently 
strong for the weight it has to bear. Dig. 8. 
2. 23. 

ONEROUS CAUSE. In Civil Law. A val- 
uable consideration. 

ONEROUS CONTRACT. In Civil Law. 
One made for a consideration given or prom- 
ised, however small. La. Oiv. Code, art. 
1767. 

'onerous gift. The gift of a thing 
subject to certain charges imposed by the 
giver on the donee. Pothier, Obi. 

ONEROUS TITLE. Under the Spanish 
and Mexican law that which was created by 
a valuable consideration, as the payment of 
money, the rendition of services, and the 
lilie, or by the performance of conditions or 
payment of charges to which the property 
was subject. See Scott v. Ward, 13 Cal. 
458. 

ONOMASTIC. A term applied to a signa- 
ture which is in a different handwriting 
from the body of tlie instrument. 2 Benth. 
Jud. Ev. 460. 

ONUS EPISCOPALE. Ancient custom- 
ary payments from the clergy to their dioce- 
san bishop, of synods, pentacostals, etc. 

ONUS IMPORTANDI. The charge of im- 
porting merchandise, mentioned in 12 Car. 
II. c. 28. 

ONUS PROBANDI (Lat.). In Evidence. 
The burden of proof. 

It is a general rule that the party who 
alleges the affirmative of any proposition 
shall proye it. It is also a general rule that 
the onus probandi lies upon the party who 
seeks to support his case by a particular 
fact : for example, when to a plea of infancy 
the plaintiff replies a promise after the de- 
fendant had attained his age, it is sufficient 
for the plaintiff to prove the promise, and it 
lies on the defendant to show that he was 
not of age at the time; 1 Term 648. But 
where the negative involves a criminal omis- 
sion by the party, and, consequently, where 
the law, by virtue of the general principle, 
presumes his innocence, the affirmative of 



the fact is also presumed. See Hartwell v. 
Root, 19 Johns. (N. Y.) 345, 10 Am. Dec. 
232; Hicks v. Martin, 9 Mart. O. S. (La.) 
48, 13 Am. Dec. 304; Morgan v. Mitchell, 3 
Mart. N. S. (La.) 576. The burden of proof 
of the want of mental capacity of a person 
at the time of his marriage is on those as- 
serting it, in the absence of proof of a con- 
firmed condition of lunacy or idiocy prior to 
such marriage; Nonnemacher v. Nonnemach- 
er, 159 Pa. 684, 28 Atl. 439. 

In general, wherever the law presumes 
the affirmative, it lies on the party who de- 
nies the fact to prove the negative ; as when 
the law raises a presumption as to the con- 
tinuance of life, the legitimacy of children 
born in wedlock, or the satisfaction of a 
debt. 

The party on whom the onus proiandi lies 
is entitled to begin, notwithstanding the tech- 
nical form of the proceedings; 1 Stark. Ev. 
584. See Burden of Proof; Opening and 
Closing; Negative. 

OOPHORECTOMY. The removal of the 
ovaries in which the female germinal ele- 
ment or ovum is produced. See Vasectomt. 

OPEN. To begin. He begins or opens 
who has the affirmative of an issue. 1 Greenl. 
Ev. § 74. 

To open a case is to make a statement of 
the pleadings in a case, which is called the 
opening. This should be concise, very dis- 
tinct, and perspicuous. Its use is to enable 
the judge and jury to direct their attention 
to the real merits of the case and the points 
in issue ; 1 Stark. 439 ; 2 id. 317. 

To vacate; to relieve a party who has an 
equitable right to such relief against a pro- 
ceeding which is to him a formal or legal 
bar; to allow a re-discussion on the merits. 

For example, to open a rule of court. 2 
Chltty, Bail 265; 1 Mann. &amp; G. 555; 7 Ad. 
&amp; E. 519. To open a judgment or default; 
Taylor v. Place, 4 R. I. 324 ; Rogan v. Walk- 
er, 1 Wis. 631. See Opening a Judgment. 
To open an account; to make a judicial an- 
nouncement, that a party, e. g. an executor, 
shall not be absolutely bound by the account 
he has rendered, but may show that it con- 
tains errors to his prejudice. To open a 
marriage settlement or an estate-tail; i. e. 
to allow a new settlement of the estate. To 
open biddings; i. e. to allow a re-sale. See 
Opening Biddings. To open a contract; 
Tucker v. Madden, 44 Me. 206 j a highway; 
State V. County Ave. Com'rs, 37 N. J. L. 14. 

OPEN A CREDIT. To accept or pay the 
draft of a correspondent •vj'ho has not fur- 
nished funds. Pardessus, n. 296. 

OPEN ACCOUNT. A running or unsettled 
account; not completely settled, but subject 
to future adjustment. Sheppard v. Wilklns, 
1 Ala. 62 ; Dolhonde v. Laurans, 21 La. Ann. 
406; Purvis v. Kroner, 18 Or. 414, 23 Pac. 
260. 



OPEN COMMISSION 



2414 



OPKN COURT 



OPEN COMMISSION. A commission with- 
out written interrogatories issued out of any 
one of certain courts of record, an issue of 
fact having been, joined in that court, to take 
the testimony of witnesses, not within the 
state, but within the United States and Can- 
ada ; N. Y. Code Ov. Proc. §§ 893, 894, 897. 
The application for an open commission will 
be dented where there is reason to believe 
that a commission with interrogatories will 
develop all the facts bearing upon the case. 
Dickinson v. Bush, 17 Weekly Dig. (N. T.) 17. 

OPEN COURT. A court formally opened 
and engaged in the transaction of all judi- 
cial functions. Hobart v. Hobart, 45 la. 501. 

A court to which all persons have free ac- 
cess as spectators while they conduct them- 
selves in an orderly manner. 

The term is used in the first sense as dis- 
tinguishing a court from a judge sitting in 
chambers or informally for the transaction 
of such matters as may be thus transacted. 
See Chambees; Cotjkt. 

In the second sense, all courts in the Unit- 
ed States are open ; but in England, former- 
ly, while the parties and probably their wit- 
nesses were admitted freely in the courts, all 
other persons were required to pay in order 
to obtain admittance. Stat. 13 Edw. I. cc. 
42, 44; Barr. on the Stat. 126, 127. See Prin. 
of Pen. Law 165. 

In most of the states the constitution pro- 
vides that persons accused shall have a 
speedy public trial; Stimson, Am. Stat. L. § 
131. This has been construed to mean that 
"the doors of the court-room are expected 
to be kept open, the public are entitled to be 
admitted, and the trial is to be ptrtjlic in all 
respects . . . with due regard to the size 
of the court-room and the conveniences of the 
court, the right to exclude objectionable char- 
acters and youth of tender, years, and to do 
other things which may facilitate the proper 
conduct of the trial;" People v. Hartman, 
103 Cal. 242, 37 Pac. 153, 42 Am. St. Rep. 
108 ; in this case a conviction of assault with' 
intent to commit rape was reversed because 
against defendant's objection all persons were 
excluded except the ofiicers of the court and 
the defendant ; id. In a trial of a civil case 
of trespass for adultery the judgment was re- 
versed because all but parties and witnesses 
were excluded; Williamson v. Lacy, 86 Me. 
80, 29 Atl. 943, 25 L. R. A. 506. 

In California the court may direct the trial 
of issues of fact in private ; Cal. Code, C. P. 
§ 125; but this act does not authorize the 
court to forbid the publication of the testi- 
mony, and when such an order was made, 
an order of contempt against a newspaper 
publisher was reversed; In re Shortridge, 99 
Cal. 526, 34 Pac. 227, 21 L. R. A. 755, 37 Am. 
St. Rep. 78. On a trial for assault with in- 
tent to kill, all persons were excluded except 
officers of the court, press reporters, and 
friends of defendant; the order was made 
on behalf of defendant, who was liable to be I 



excited by a crowd, as well as to preserve 
order, and it was held that her right to a 
public trial was not violated ; People v. Ker- 
rigan, 73 Cal. 222, 14 Pac. 849. 

In a suit for an injunction against the Use 
of secret processes it was held error to ex- 
clude evidence of the details, as accurate 
knowledge on the subject is required before 
granting an injunction, but the embodiment 
of the secret in the injunction is not neces- 
sary; testimony taken in camera may be 
sealed, and used only when it becomes neCr 
essary to determine whether there has been 
a violation; Taylor I. &amp; S. Co. v. Nichols, 
73 N. J. Eq. 684, 69 Atl. 186, 24 L. R. A. 
(N. S.) 933, 133 Am. St. Rep. 753. 

It was said by Lord Bldon that it was 
the uniform practice in chancery, as long 
as the court had existed, in the case of fami- 
ly disputes, on the application of counsel on 
both sides, to hear the same in the chancel- 
lor's private room, and that what was so 
done was not the act of the judge but of the 
parties; Coop. t. Eldon 106; in a later case, 
on application for a private hearing relating 
to the custody of a young lady who w:as a 
ward of the court. Lord Brougham directed 
the case to be heard in private on the assur- 
ance of counsel that such course was proper, 
notwithstanding that one party withheld his 
consent; 2 Russ. &amp; M. 688; and it is noted 
that this course was frequently followed by 
the same judge; id. In a patent case, the 
court being of opinion that the patent was 
valid, permitted the defendant to state his 
secret process in camera; 24 Ch. D. 156 ; an 
application for an injunction to restrain a 
solicitor from disclosing confidential infor- 
mation was ordered to be heard in private 
without consent of defendant, upon the state- 
ment of . plaintiffs counsel that in his opinion 
a public hearing would defeat the object of 
the action; .31 Ch. D. 55; 9 Ch. App. 522; 
but this will not be done without consent of 
both parties unless it is clear that such 
would be the result of a public hearing; id. 

It has been held that suits for nullity of 
marriage or judicial separation may be heard 
in camera, but not a petition for dissolution 
of marriage ; L. R. 1 p. &amp; d. 640 ; this case 
was put upon the ground that the matter 
was controlled, to. that result, by 20 &amp; 21 
Vict. c. 85, § 22; but in a later case there 
was a distinct disapproval of the limitation, 
and it was said that as the ecclesiastical 
courts had the power to hear nullity suits in 
private when it was desirable for the sake 
of public decency, the same power must ex- 
ist in other cases wjtiere it was required for 
the same reason; L. R. 3 P. &amp; M. 230. It 
was held that under the English practice, a 
law court had power to try a case in camera, 
without a jury, when the parties consent; 53 
J. P. 822. 

In 4 Ch. D. 174, Jessel, M. R., considered 
"that the High Court of Justice had no pow- 
er to hear cases in private even with the 



OPEN COURT 



iJ415 



OPEN COURT 



' Consent of the parties, except cases afifecting 
lunatics or wards of court, or where a pub- 
lic trial would defeat the object of the ac- 
tion." The report of the case contains many 
interesting interpellations of the court dur- 
ing the argument. 

Lord Esher, M. R., said in Pittard v. Oli- 
ver that as to proceedings In courts of justice 
it was for the interest of all the public to 
hear what takes place in court; [1891] 1 Q. B. 
474, where it was held that where matters dis- 
cussed in camera were privileged, the pres- 
ence of reporters did not take away the privi- 
lege. And in another case the same judge 
said that "public policy requires that some 
hardship should be suffered by individuals 
rather than that judicial proceedings should 
be held in secret ;" [1893] 1 Q. B. 65. Again, 
it was said by North, J.,, in holding the 
publication of proceedings in open court to be 
privileged, that "the general rule is an ex- 
cellent one, that legal proceedings should be 
in public;" [1894] 3 Ch. 193, where it was 
held contempt to publish any account how- 
ever meagre, and whether accurate or inac- 
curate, of a hearing in camera. 

As long ago as 1829, Mr. Justice Bayley 
declared "that it is one of the essential qual- 
ities of a court of justice that its proceedings 
should be public, and that all parties who 
may be desirous of hearing what is going 
on, if there be room in the place for that 
purpose, — provided they do not interrupt the 
proceedings, and provided there is no specitic 
reason why they should be removed, — have 
a right to be present for the purpose of hear- 
ing what is going on"; 10 B. &amp; C. 237; it 
was there held that an action would, be 
against a justice of the peace for excluding 
from his court the attorney of an absent 
defendant 

The subject was fully argued and consid- 
ered in Scott V. Scott, [1913] A. C. 417, in 
the House of Lords and certain questions 
were finally settled. It was there held that 
a suit for nullity of marriage cannot be 
heard in camera. The only exceptions to the 
general rule prescribing publicity of courts 
are suits affecting wards, those in relation 
to lunatics, and thirdly, those where secrecy 
(as a secret process or discovery) is of the 
essence of the cause. The consent of the 
parties to try a case in camera does not give 
jurisdiction. Here, after a hearing in camera 
In the court below, one of the' parties had 
exhibited to three persons copies of the tes- 
timony, and was adjudged to be in contempt. 
This judgment was reversed above. In his 
opinion Lord Shaw quoted Hallam as saying 
that "he ranks the publicity of judicial pro- 
ceedings even higher than the rights of Par- 
liament as a guaranty of public security"; 
and proceeds : "There is no greater danger 
than that which proceeds little by little, un- 
der cover of rules of procedure, and at the 
instance of the judges themselves." 



It has been pointed out that as to two of 
the exceptions above stated, infancy and 
lunacy, the jurisdiction of the court is par- 
ental or administrative. Even here Lord 
Shaw, partially disagreeing with the other 
judges, was of opinion that neither infants 
nor lunatics should be prohibited from pub- 
lishing facts relating to themselves merely 
because they were elicited at a trial in cam- 
era. The English Children's Act 1908 and 
the Incest Act 1908 both provide that certain 
criminal trials under those acts should be 
held in camera. 

The settled judgment of our ancestors and 
ourselves is that publicity in the administra- 
tion of the law is on the whole worth more 
to society than it costs. Pollock, Expansion 
of C. L. 32. 

A hearing in camera differs from one at 
chambers (g. v.) ; the former being a private 
hearing by a court and the latter a hearing 
by a judge not in a riegular session of court. 

See 15 Am. L. Rev.. 427; People v. Mur- 
ray, 89 Mich. 276, 50 N. W. 995, 14 L. R. A. 
809, 28 Am. St. Rep. 294, where the subject 
is fully discussed. See In Cameba. 

The subject is further treated under 
Trial. 

OPEN ENTRY. See Bntey. 

OPEN FOR BUSINESS. A store Is open 
for business when, according to custom, the 
door is locked after dark, but customers can 
get In by knocking. Sun Ins. Co. v. Jones, 
54 Ark. 376, 15 S. W. 1034. 

OPEN INSOLVENCY. The condition of a 
person having no property, within the reach 
of the law, applicable to the payment of any 
debt. Hardesty v. KInworthy, 8 Blackf. 
(Ind.) 305. 

OPEN LAW. The waging of law. Magna 
Carta, a 21. 

OPEN POLICY. An open poUcy is one in 
which the amount of the interest of the in- 
sured Is not fixed by the policy, and Is to be 
ascertained in case of loss. See Policy. 

OPEN SHOP. See Labob Union. 

OPENING. In American Practice. Thebe- 
glnnlng. The commencement. The first ad- 
dress of the counsel. 

The opening is made immediately upon 
the impanelling of the jury : it embraces the 
reading of such oil the pleadings as may be 
necessary, and a brief outline of the case as 
the party expects to prove it, where there 
is a trial, or of the argument, where it is 
addressed to the court. 

OPENING A COMMISSION. See Coubts 
OP Assize and Nisi Pbids. 

OPENING A JUDGMENT. An act of the 
court by which a Judgment is so far annulled 
that it cannot be executed, although it still 
retains some qualities of a judgment : as, for 
example, its binding operation or lien upon 
the real estate of the defendant 



OPENING A JUDGMENT 



2410 



OPENING AND CLOSING 



The opening of the judgment takes place 
when some person having an interest makes 
affidavit to facts which, if true, would ren- 
der the execution of such judgment inequita- 
ble. The judgment is opened so as to be in 
effect an award of a collateral issue to try 
the facts alleged in the affidavit; Liowrey v. 
Traeey, 6 W. &amp; S. (Pa.) 493. 

The rule to open judgment and let defend- 
ant into a defence is peculiar to Pennsyl- 
vania practice, and is a clear example of the 
system of administering equity under com- 
mon-law forms. By practice it is confined 
to judgments by default and those entered 
on warrants of attorney to confess, etc. It 
was, however, devised in the. absence of a 
court of chancery, as a substitute for a bill 
In equity, to enjoin proceedings at law; 
■Mitchell's Motions and Rules; Cochran v. 
Bldridge, 49 Pa. 365. 

OPENING A RULE. The act of restoring 
or recalling a rule which has been made ab- 
solute to its conditional state, as a rule nisi, 
so as to re-admit of cause being shown 
against the rule. Brown. 

OPENING AND CLOSING. After the evi- 
dence is all in, the plaintifl: has the privilege 
of the opening and closing or summing up 
speeches to the jury; in the closing address 
he should confine himself to a reply to de- 
fendant's speech. It seems doubtful wheth- 
er it is Within the discretion of the court to 
interfere with this established mode of pro- 
cedure; at least it should only be done with 
great 'caution ; Barden v. Briscoe, 86 Mich. 
254; Millerd v. Thorn, 56 N. Y. 402; Royal 
Ins. Co. V. Schwing, 87 Ky. 410, 9 S. W. 242. 
But in some courts it is the practice for the 
defendant's counsel to open to the jury, fol- 
lowed by the plaintiff's counsel. 

Under the federal practice the right rests 
in the discretion of the court and is not the 
subject of error ; where the defendant plead- 
ed a partial defense in an action for the 
price of machinery, but did not, in his an- 
swer, unequivocally admit its sale and deliv- 
ery, it was hot an abuse of discretion to per- 
mit the plaintiff to open and close ; Florence 
Oil &amp; r; Co. v. Farrar, 109 Fed. 254, 48 C. 
C. A. 345, Caldwell and Sanborn, C. J J., and 
Adams, D. J. Where the burden of proof was 
upon one of two defendants, and as to the 
other it wa^ on the plaintiff, the right to 
open was in the discretion of the trial judge ; 
Simon's v. Pearson, 61 S. W. 259, 22 Ky. L. 
Rep. 1707 ; so in the distribution of an intes- 
tate's estate where several claimed as next 
of kin, to the exclvision of all others; Soren- 
sen V. Sorensen, 68 Neb. 483; 94 N. W. 540, 
98 N. W. 837, 100 N. W. 930, 103 N. W. 455; 
where defendant offers no proof, he is en- 
titled to open and close ; Moore v. Carey, 116 
Ga. 28, 42 S. E. 258; contra, in a personal 
Injury case; De Maria v. Cramer, 70 N. J. 
L. 682, 58 Atl. 341. 



See Best's Right to Begin and Reply; 14 
Yale If. J. 54 ; Trial ; Steinkuehler v. Wemp- 
ner, 169 Ind. 154, 81 N. B. 482, 15 U R. A. 
(N. S.) 674 (will cases). 

In English Practice. The address made im- 
mediately after the evidence is closed. Such 
address usually states — first, the full extent 
of the plaintiff's claims, and the circum- 
stances under which they are made, to show 
that they are just and reasonable; second, 
at least an outline of the evidence by which 
those claims are to be established ; third, the 
legal grounds and authorities in favor of the 
claim or of the proposed evidence; fourth, 
an anticipation of the expected defence, and 
statement of the grounds on which it is 
futile, either in law or justice, and the rea- 
sons why it ought to fail. But the court 
will sometimes restrict counsel from an an- 
ticipation of the defence; 3 Chitty, Pr. 881. 

OPENING BIDDINGS. Ordering a re-sale. 
When estates are sold under decree of equi- 
ty to the highest bidder, the court will, on 
notice of an offer of a sufficient advance on 
the price obtained, open the biddings, i. e. 
order a re-sale. But this will not generally 
be done after the confirmation of the certifi- 
cate "of the highest bidder. So, by analogy, 
a re-sale has been ordered of an estate sold 
under bankruptcy. Sugd. Vend. 90; Lefevre 
V. Laraway, 22 Barb. (N. Y.) 167 ; Wright v. 
Oantzon, 31 Miss. 514. 

In England, by stat. 30 &amp; 31 Vict. c. 48, 
s. 7, the opening of biddings is now allowed 
only in cases of fraud or misconduct in the 
sale; Wms. R. P. The courts of this coun- 
try also will not generally open the biddings 
merely to obtain a hligher price, but require 
irregularity, fraud, or gross inadequacy of 
price to be shown. 

OPENING OF A POLICY OF INSUR- 
ANCE. The question has been made wheth- 
er, and in what cases, if any, the valuation 
in a valued policy shall be opened. The 
valuation, being a part of the agreement of 
the parties, is not to be set aside as between 
them in any case. The question is, how shaU 
it be treated where only a part of the sub- 
ject insured and valued is put at a risk, and 
also in the settlement of a particular aver- 
age? and tlie answer is the same in both 
cases : viz., when -the proportion or rate per 
centum put at risk or lost is ascertained, the 
agreed valuation of the whole is to be ap- 
plied to the part put at risk or the propor- 
tion lost, pro rata. 2 PhUl. Ins. 1203. 

OPERA. See Copthiqht; Musical Com- 
positions. 

OPERARI. Such tenants under feudal 
tenures, as held some portion of land by the 
duty of performing bodily labor and servile 
works for their lord. 

OPERATING EXPENSES. They are, 
broadly speaking, those which it is reasona- 



OPERATING EXPENSES 



2417 



OPEKATION OF LAW 



bly necessary to incur for the purpose of 
keeping up a railroad (to which the term 
Is commonly applied) as a going concern, or, 
as it is sometimes expressed, those which 
conduce to the conservation of the property. 
Short, Eailw. Bonds § 653. 

The term, when used in a reorganization 
plan, does not include money spent on steel 
rail betterments, or on steamers owned by 
the company to make them more efficient, or 
on the purchase of freight engines and coal 
cars ; Mackintosh v. R. Co., 34 Fed. 582. Un- 
der a Massachusetts statute, it was held that 
damage to property at a railroad crossing 
must be considered as operating expenses; 
Smith V. R. Co., 124 Mass. 154. Judgments 
against a receiver for damages to persons by 
negUgence are a part of the operating ex- 
penses; St. Louis S. W. R. Co. v Holbrook, 
73 Fed. 112, 19 C. C. A. 385. All outlays 
made by a receiver in the ordinary course, 
with a view to advance and promote the 
business of the road and render it profitable 
and successful, are fairly within the receiv- 
er's discretion ; this will Include not only 
keeping the road and rolling stock in repair, 
but also providing such additional accommo- 
dations, stock, and . instrumentalities as the 
necessities of the business may require; 
Cowdrey v. R. Co., 1 Woods 331, Fed. Gas. 
No. 3,298. The court will authorize the pur- 
chase of new rails ; Phinizy v. R. Co., 62 Fed. 
771 ; and the payment of reasonable office 
rent; Cowdrey v. R. Co., 1 Woods 331, Fed. 
Cas. No. 3,293 ; and the payment of interest 
on money which a receiver has been obliged 
to l^orrow; id.; and of traffic balances on 
connecting roads ; Meyer v. Johnston, 64 Ala. 
603; and rebates on freight; Cowdrey v. R. 
Co., 1 Woods 331, Fed. Cas. No. 3,293. 

Damages paid to the owners of goods lost 
in transportation and for injury to property 
during a receivership will be allowed in the 
receiver's account of earnings; Cowdriey v. 
R. Co., 93 U. S. 352, 23 L. Ed. 950; such 
claims stand upon the same footing as the 
other expenses of administration; Short, 
Railw. Bond? | 669; Mobile &amp; O. R. Co. v. 
Davis, 62 Miss.' 271 ; Kain v. Smith, 80 N. Y. 
458. 

Earnings diverted to the payment of in- 
terest on receiver's certificates made payable 
out of the corpus, or td the costs or allowanc- 
es in the foreclosure suit or any other matter 
not proi)erly operating expenses, must be 
returned to the current earnings fund ; Blair 
V. R. Co., 25 Fed. 232. See Mortgage; Rb- 

OEGANIZATION. 

OPERATrON OF LAW. The obligation 
Of law. U. S. V. Hammond, 1 Cra. C. C. 19 ; 
Fed. Cas. No. 15,293; its practical working 
and effect, Geebrick v. State, 5 la. 496. A 
term applied to indicate the manner in which 
a party acquires rights without any act of 
his own: as, the right to an estate of one 
who dies intestate is. cast upon the heir at 
Boxjv.— 152 



law, by operation of law ; when a lessee for 
life enfeoffs him in reversion, or wlien the 
lessee and lessor join in a feoffment, or when 
a lessee for life or years accepts a new 
lease or demise from the lessor, there is a 
surrender of the first lease by operation of 
law ; 5 B. &amp; C. 269 ; 2 B. &amp; Ad. 119. See De- 
scent ; Ptjbchase. 

OPERATIVE. A workman; one employed 
to perform labor for another. See 3 C. Rob, 
237; Mason v. The Blaireau, 2 Cra. (V. S.) 
240, 270, 2 L. Ed. 266. See Factoby Acts ; 
Masteb and Seevant. 

OPERATIVE PART. That part of a con- 
veyance, lease, mortgage or other instru- 
ment, which carries out its main object. 

OPERATIVE WORDS. In a deed, or 
lease, the words which effect the transaction 
of which the instrument is the evidence; 
the terms generally used in a lease are "de- 
mise and lease," but any words clearly in- 
dicating an intention of making a present 
demise will suffice; Wins. R. P. 196; Bacon, 
Abr. (K) 161. 

OPINION. In Evidence. An Inference or 
conclusion drawn by a witness as distin- 
guished from facts known to him as facts. 

It is the province of the jury to draw in- 
ferences and conclusions; and if witnesses 
were in general allowed to testify what they 
believe as well as what they know, the ver- 
dict would sometimes prove not the decision 
of the jury, but that of the witnesses. Hence 
the rule that, in general, the witness cannot 
be asked his opinion upon a particular ques- 
tion ; Patterson v. Colebrook, 29 N. H. 94; 
Dawson v. Callaway, 18 Ga. 573 ; Morehouse 
V. Mathews, 2 N. T. 514 ; De Witt v. Barly, 
17 N. Y. 340. 

Where all the facts of a transaction are 
clearly stated by a witness, his inference 
therefroin is inadmissible ; Gentry v. Single- 
ton, 128 Fed. 679, 63 C. G. A. 231. 

While it is incompetent for a witness to 
state his opinion upon a question of law, 
where the intent with which an act done 
by him is drawn in question he may testify 
as to such intent ; 12 Reptr. 664. 

Some confusion in the application of this 
rule arises from the delicacy of the. line 
which divides that which is to be regarded 
as matter of observation from that which 
is matter of judgment founded upon ob- 
servation. Thus, it is held that an unpro- 
fessional witness may testify to the fact 
that a person whom he saw was intoxicated, 
whether he is able to state all the constit- 
uent facts which amount to drunkenness or 
not; People v. Eastwood, 14 N. Y. 562; Stan- 
ley V. State, 26 Ala. 26 ; McKillop v. Ry. Co., 
53 Minn. 532, 55 N. W. 739; he may also tes- 
tify as to the apparent condition of a party 
as to sobriety, shortly before the commission 
of an offence ; People v. Monteith, 73 Cal. 7, 
14 Pac. 373. He is also competent to testify 



OPINION 



2418 



OPINION 



whether a person with whom he Is familiarly 
associated is In good or bad health and hear- 
ing, is lame or has the natural use of his 
limbs, and also whether on certain occasions 
he was unconscious ; Chicago City Ry. Co. v. 
Van Vlecls, 143 111. 480, 32 N. E. 2G2; also 
whether a certain person has African blood 
in his veins; Hare v. Board of Education, 
113 N. C. 9, 18 S. E. 55. But, on the othjer 
hand, insanity or mental Incapacity cannot, 
in general, be proved by the mere assertion 
of an unprofessional witness; De Witt v. 
Early, 17 N. Y. 340; Gehrlie v. State, 13 Tex. 
568; but the opinion of non-expert wit- 
nesses may be given as to mental capacity 
where the facts upon which the opinions 
are based are disclosed ; Johnson v. Culver, 
116 Ind. 278, 19 N. B. 129; Keithley v. Staf- 
ford, 126 111. 507, 18 N. B. 740; State v. 
Potts, 100 N. C. 457, 6 S. E. 657 ; Frizzell v. 
Reed, 77 Ga. 724; FIshburne v. Ferguson's 
Heirs, 84 Va. 87, 4 S. E. 575. 

So handwriting may be proved by being 
recognized by a witness who has seen other 
writings of the party in tjie usual course of 
business, or who has seen him write; Steph. 
Ev. § 51; TItford v. Knott, 2 Johns. Cas. 
(N. Y.) 211; Snider v. Burks, 84 Ala. 53, 4 
South. 225. See Brown v. Hall, 85 Va. 146, 7 
S. E. 182. But, on the other hand, the au- 
thorship of an anonymous article In a news- 
paper cannot be proved by one professing to 
have a knowledge of the author's style ; Lee 
V. Bennett, How. App. Cas. 187. 

The mere opinions of witnesses, without 
the facts on which they are based, are of 
very little value, especially where the wit- 
nesses are constitutionally or by Interest 
biased and not impartial ; Pannell v. Tobac- 
co Warehouse Co., 113 Ky. 630, 68 S. W. 
662, 82 S. W. 1141 ; Kerr v. Lunsford, 31 W. 
Va. 659, 8 S. E. 493, 2 L. R. A. 668. 

From necessity, an exception to the rule 
of excluding opinions is made In questions 
Involving matters of science, art, or trade, 
where skill and knowledge possessed by a 
witness, peculiar to the subject, give a value 
to his opinion above that of any Inference 
which the jury could draw from facts which 
he might state; People v. Bodlne, 1 Denio 
(N. Y.) 281; Reed v. Hobbs, 2 Scam. (111.) 
297; Woodman v. Barker, 2 N. H. 480; Al- 
fonso V. U. S., 2 Story 421, Fed. Cas. No. 188. 
Such a witness Is termed an expert; and he 
may give his opinion in evidence; Whart 
Ev. 440. Experts alone can give an opinion 
based on facts shown by others, assuming 
them to be true; State v. Potts, 100 N. C. 
457, 6 S. E. 657. 

The following reference to some of the 
matters in which the opinions of expert wit- 
nesses have been held admissible will Illus- 
trate this principle. The unwritten or com- 
mon law of foreign countries may be proved 
by the opinion of witnesses possessing pro- 
fessional- knowledge; Strother- v. Lucas, 6 



Pet. (U. S.) 763, 8 L. Ed. 573; Packard v. 
Hill, 2 Wend. (N. Y.) 411; Raynham t. 
Canton, 3 Pick. (Mass.) 293; Frith t. 
Sprague, 14 Mass. 455; Dennlson v. Hyde, 6 
Conn. 508; Dougherty v. Snyder, 15 S. &amp; R. 
(Pa.) 87, 16 Am. Dec. 520; the degree of 
hazard of property Insured against fire; Hob- 
by V. Dana, 17 Barb. (N. Y.) Ill; whether 
a picture Is a good likeness or not; Barnes 
V. Ingalls, 39 Ala. 193; handwriting; Hop- 
kins V. Megquire, 35 Me. 78; Bowman v. 
Sanborn, 25 N. H. 87; mechanical opera- 
tions, the proper way of conducting a par- 
ticular manufacture, and the effect of a cer- 
tain method; Price v. Powell, 3 N. Y. 322; 
negligence of a navigator, and its effect In 
producing a collision; Cook v. Parham, 24 
Ala. 21; sanity; Stuckey v. Bellah, 41 Ala. 
700 f People v; Lake, 12 N. Y. 358; impoten- 
cy; is Phlll. Eccl. 14; value of chattels; 
Dixon V. Barclay, 22 Ala. 370; Carpenter v. 
Wait, 11 Cush. (Mass.) 257; Nickley v. 
Thomas, 22 Barb. (N. Y.) 652; value of 
land; Dwight v. County Com'rs, 11 Cush. 
(Mass.) 201; Clark v. Baird, 9 N. Y. 183; 
value of services; Beekman v. Platner, 15 
Barb. (N. Y.) 550; speed of a railway train; 
Salter v. R. Co., 59 N. Y. 631 ; benefit to real 
property by laying out a street adjacent 
thereto; Shaw V. Charlestown, 2 Gray 
(Mass.) 107; survey marks identified as be- 
ing those made by United States surveyors; 
Brantly v. Swift, 24 Ala. 390; as to the loca- 
tion of surveys; Jackson v. Lambert, 121 
Pa. 182, 15 Atl. 502 ; Hockmoth v. Des Grand 
Champs, 71 Mich. 520, 39 N. W. 737; sea- 
worthiness ; 10 BIngh. 57 ; whether a person 
appeared sick or well; Higble v. Ins. Co., 53 
N. Y. 603; of the effect of a personal In- 
jury; Evansville.&amp; T. H. R. Co. v. Crist, 116 
Ind. 446, 19 N. E. 310, 2 L. R. A. 450, 9 Am. 
St. Rep. 865 ; Reed v. R. Co., 56 Fed. 184; 
whether, fright would produce heart trouble; 
Illmois C. R. Co. v. Latimer, 128 111. 163, 21 
N. E. 7; whether a child would have been 
born alive if he had received medical assist- 
ance in time ; Western U. Tel. Co. v. Cooper, 
71 Tex. 507, 9 S. W. 598, 1 L. R. A. 728, 10 
Am. St. Rep. 772; as to the distance at 
which It is safe to stop before going upon a 
crossing; New York, C. &amp; St L. R. Co. v. E. 
Co., 116 Ind. 60, 18 N. E. 182. So an en- 
gineer may be called to say what, in his 
opinion, is the cause of a harbor having 
been blocked up ; 3 Dougl. 158. Opinion evi- 
dence as to the age of a person, from his 
appearance, is not admissible; Morse v. 
State, 6 Conn. 9; but see Walker v. State, 
25 Tex. App. 448, 8 S. W. 644 ; Eisner v. K. 
&amp; L. of Honor, 98 Mo. 640, 11 S. W. 991 ; 
nor is it in cases involving adultery, on the 
question of guilt or guilty intent; see Cox's 
Adm'r v. Whitfield, 18 Ala. 738 ; nor can an 
opinion be given as to the meaning of an 
instrument where the words or phrases are 
not technical; Hill v. Mfg. Co., 79 Ga. 103, 



OPINION 



2419 



OPINION 



3 S. E. 445 ; Brendon v. Worley, 8 Misc. 253, 
28 N. T. Supp. 557; nor in a matter requir- 
ing no peculiar knowledge or experience ; Ft. 
Pitt Gas Co. V. Contract Co., 123 Fed. 63, 59 
C. C. A. 281 ; nor as to the technical mean- 
ing of a word used in a written instrument; 
Butte &amp; B. C. M. Co. V. Ore Purchasing Co., 
121 Fed. 524, 58 C. C. A. 634. 

It is to be observed, however, that the 
principle of admitting such opinions is taken 
with the qualifications necessary to make, as 
far as possible, the judgment of the jury, 
and not that of the witness, the final means 
of determining the issue. Thus opinions of 
experts are not admissible upon the question 
of damages; Lincoln v. R. Co., 23 Wend. (N. 
T.) 425; Chandler v. Bush, 84 Ala. 102, 4 
South. 207; nor whether damages were oc- 
casioned by negligence; East Tennessee, V. 
&amp; G. R. R. V. Wright, 76 Ga. 532; Hughes v. 
Doyle, 91 Tex. 422, 44 S. W. 64; National 
Biscuit Co. V. Nolan, 138 Fed. 6, 70 C. C. A. 
436; and experts are always confined to 
opinions vrtthin the scope of their profes- 
sions, and are not allowed to give opinions 
on things of which the jury can. as well 
judge; Gibson v. Williams, 4 Wend. (N. T.) 
320; Kinne v. Kinne, 9 Conn. 102, 21 Am. 
Dec. 732 ; Rochester v. Chester, 3 N. H. 349; 
Law V. Scott, 5 Harr. &amp; J. (Md.) 438; Lynch 
v. U. S., 138 Fed. 536, 71 C. O. A. 59; a phys- 
ician will not be permitted to give his opin- 
ion based entirely on statements out of court 
made to him by persons other than the pa- 
tient ; Heald v. Thing, 45 Me. 392 ; Wether- 
bee's Ex'rs V. Wetherbee's Heirs, 38 Vt. 454. 

A distinction is also to be observed be- 
tween a feeble impression and a mere opin- 
ion or belief; Crowell v. Bank, 3 Ohio St. 
406; Brown v. Cady, 19 Wend. (N. Y.) 477. 
The testimony of experts is not admissible 
upon matters of judgment within the knowl- 
edge and experience of ordinary jurymen ; 
De Berry v. R. Co., 100 N. C. 310, 6 S. E. 
723. The opinions of a witness are not ad- 
missible as to one's agency ; Larson v. Inv. 
Co., 51 Minn. 141, 53 .N. W. 179. 

Upon an issue, in a suit upon a life insur- 
ance policy, as to the insanity of the insured 
at the time he took his own life, the opinion 
of a n6n-professional witness as to his men- 
tal condition, in connection with a statement 
of the facts and circumstances, within his 
personal knowledge, upon which that opinion 
is based, is competent evidence; Connecticut 
M. L. Ins. Co. V. Lathrop, 111 U. S. 613, 4 
Sup. Ct. 533, 28 L. Ed. 536 ; and also to dis- 
prove a representation in an insurance policy 
that applicant was temperate, witnesses may 
state whether he was temperate or intemper- 
ate, after giving the source of their informa- 
tion; Taylor v. Annuity Co., 145 N. C. 383, 
59 S. E. 139, 15 L. R. A. (N. S.) 583, 13 Ann. 
Cas. 248. 

Opinion evidence is not admissible as to 
whether the mode of coupling cars was care- 



less and not the best way of performing the 
act ; Seese v. R. Co., 39 Fed. 487. There are 
cases where the opinion of witnesses may 
be asked as to distance and other circum- 
stances, but such questions are not permis- 
sible when it is practicable to draw out with 
exactness the data upon which a judgment 
must be founded; Slack v. Black, 109 Mass. 
499. It must be left somewhat to the trial 
court ; . Manufacturers' Ace. Indemnity Co. v. 
Dorgan, 58 Fed. 948, 7 C. C. A. 581, 22 L. R. 
A. 620. Whether a particular position on a 
wharf is a safe place for a wharfinger to 
stand while a steamboat is approaching Is 
not matter for expert testimony; Inland &amp; 
S. Coasting Co. v. Tolson, 139 D. S. 551,. 11 
Sup. Ct. 653, 35 L. Ed. 27,0. 

Opinion evidence is admissible upon a 
question concerning the effect of grading a 
street on the value of the abutting property ; 
Swift &amp; Co. V. Newport News, 105 Va. 108, 52 
S. E. 821, 3 L. R. A. (N. S.) 404; so as to 
the opening of a public highway; Lowe v. 
Ryan, 94 Ind. 450. 

Mere declarations of opinion, which would 
be inadmissible if the declarant were a wit- 
ness, are inadmissible as dying declarations; 
State V. Burnett, 47 W. Va. 731, 35 S. E. 983 ; 
State V. O'Shea, 60 Kan. 772, 57 Pac. 970. 

See ExpEBTS. 

In Practice. The statement of reasons de- 
livered by a judge or court for giving the 
judgment which is pronounced upon a case. 
The judgment itself is sometimes called an 
opinion; and sometimes the opinion is 
spoken of as the judgment of the court. 

The ultimate step taken by the court is 
commonly called a decision, or, in common 
law cases, a judgment; and in equity cases, 
a decree; where the opinion is unanimous 
it is, in America, often termed a "per curiam 
opinion." 

In England judgment is commonly used 
for opinion, and "per curiam" is sometimes 
applied to any opinion of the whole court. 
Brief Making, by Lile and others, 2d Ed. by 
R. W. Cooley, 102. 

A declaration, usually in writing, made 
by a counsel to the client of what the law is, 
according to his judgment, on a statement 
of facts admitted to him. 

An opinion is in both the above cases a 
decision of what principles of law are to be 
applied in the particular case, with the dif- 
ference that judicial opinions pronounced by 
the court are law and of authority, while 
the opinions of counsel, however eminent 
are merely advice to his client or argument 
to the court 

Where there are several judges, and they 
do not all agree in the disposition of the 
cause, the opinion of the majority is termed 
the opinion of the court. The opinion of the 
minority is termed the dissenting opinion. 
The opinions of the courts, collected and pro- 
vided with such preliminary statements of 
facts and of the arguments of counsel as 



OPINION 



2420 



OPINION 



may be necessary in each case' to an under- 
standing of the decision, make up the books 
of reports. 

Opinions are said to be judicial or extra- 
judicial. A judicial opinion is one which is 
given on a question which is actually in- 
volved in the matter brought before the 
judge for hiS' decision; an extra-judicial 
opinion is one which, although given by a 
judge in deciding a case, is not necessary 
to the judgment; Vaugh. 382; 1 Hale, Hist. 
141 ; and, whether given in or out of court, 
is no more than the prolatum of him who 
gives it, and has no legal efficacy ; Steiner v. 
Coxe, 4 Pa. 28. Where a point is essential to 
the decision rendered, it will be presumed 
that it was duly considered, and that all that 
could be urged for or against it was pre- 
sented to the court. But if it appears from 
the report of the case that such point was 
not taken or inquired into at all, there is 
no ground for this presumption, and the 
authority of the case is proportionably weak- 
ened; Molony v. Dows, 8 Abb. Pr. (N. Y.) 
316. 

Where two or more points are discussed 
in the opinions delivered, on the decision of 
a cause, and the determination of either 
point in the manner indicated in such opin- 
ions would sustain the judgment pronounced 
by the court, the judges concurring in the 
judgment must be presumed to have concur- 
red in such opinions upon all the points so 
discussed, unless some dissent is expressed 
or the circumstances necessarily lead to a 
different conclusion ; James v. Patten, 6 N. 
Y. 9, 55 Am. Dec. 376. Where a judgment is 
reversed upon a part only of the grounds on 
which it went, it is still deemed an author-r 
ity as to other grounds not questioned. 

The opinion of the court assigning rea- 
sons for its conclusions cannot be treated 
as a special finding; British Q. Min. Co. v. 
Min. Co., 139 U. S. 222, 11 Sup. Ct. 523, 35 
L. Ed. 147. 

Counsel should, in giving an opinion, as 
far as practicable, give, first, a direct and 
positive opinion, meeting the point and ef- 
fect of the question, and, if the question 
proposed is properly divisible into several, 
treating it accordingly. Second, his reasons, 
succinctly stated, in support of such opinion. 
Third, a reference to the statutes or deci- 
sions on the subject Fourth, when the facts 
are susceptible of a material difference in 
statement, a suggestion of the probability of 
such variation. When an opinion is sought 
as a guide in respect to maintaining an ac- 
tion or defence, some other matters should 
be noticed: as, Fifth, any necessary pre- 
cautionary suggestions in reference to the 
possibility of a fatal defect in the evidence, 
arising from the nature of the case. Thus, 
where some important fact is stated as rest- 
ing principally on the statement of the party 
interested, if by the law of the place such 



party Is incompetent to testify respecting 
it, a suggestion ought to be made to inquire 
how that fact is to be proved. Sixth, a sug- 
gestion of the proper mode of proceeding, or 
the process or pleadings to be adopted. 

In English and American law, the opin- 
ions of counsel, however eminent, are not 
entitled to any weight with the court, as 
evidence of the law. While the court will 
deem it their duty to receive such opinions 
as arguments, and as such entitled to what- 
ever weight they may have, they will not 
yield to them any authority; Steiner v. Coxe, 
4 Pa. 28, per Gibson, C. J. In many eases, 
where a client acts in good faith under the 
advice of counsel, he may on that ground be 
protected from a liability which the law 
might otherwise have imposed upon him. 

The attorney-general of the United States 
gives to the president his opinion and advice 
upon questions of law whenever required; 
and upon the request of the head of any of 
the executive departments of the govern- 
ment, he is required to give his opinion on 
questions of law arising in the administra- 
tion of the department ; R. S. §§ 354, 356. 
See Judge; Expert; Opinion of Judges; 
Peecedent; Legislative Powee. 

OPINION OF JUDGES. The federal judi- 
ciary can be called upon only to decide con- 
troversies brought before them in legal form. 

The constitution of Massachusetts au- 
thorizes each branch of the legislature and 
the governor and council to call on the su- 
preme court justices for opinions "upon im- 
portant questions, and upon solemn occa- 
sions," and substantially the same provision ' 
occurs in the constitutions of Colorado, Flor- 
ida, Maine, New Hampshire, Rhode Island, 
South Dakota and Hawaii. Such opinions 
have been given with reluctance; 63 Mass. 
604 ; and they are generally held to be pure- 
ly advisory and not binding as precedents, 
although they have been held such ; In re 
Constitutionality of Senate Bill No. 65, 12 
Colo. 466, 21 Pac. 478. A Minnesota stat- 
ute authorizing advisory opinions was held 
unconstitutional as devalving upon the 
judges duties not strictly judicial; In re 
Senate of State, 10 Minn. 78 (Gil. 56). 

There have been refusals by the courts to 
give opinions even where required by the 
constitution of the state; In re Construc- 
tion of Constitution, 3 S. D. 548, 54 N. W. 
650, 19 L. R. A. 575 ; In re Constitutionality 
of Senate Bill No. 65, 12 Colo. 466, 21 Pac. 
478 ; Answer of Justices, 122 Mass. 600; id., 
148 Mass. 633, 21 N. E. 439; id., 150 Mass. 
598, 24 N. E. 1086. The general basis of 
these refusals has been that it is for the 
judges to determine whether the occasion is 
within the constitutional provision. 

The Delaware constitution formerly had a 
provision authorizing the governor to en- 
quire of the judges touching questions of 
constitutional law; the legislature, by reso- 



OPINION OF JUDGES 



2421 



OPINION OP JUDOES 



lution, asked their opinion as to its powers 
to change the basis of representation for the 
legislature. The Judges gave separate opin- 
ions (Laws- 1883), but one or more of them 
stated that they did so only out of respect 

■ Where a coroner came into court and ask- 
ed the opinion of the court as to his official 
duties, Thayer, P. J., said : "I have no 
hesitation in expressing my opinion in re- 
gard to the question which the coroner has 
propounded to the court." Com. v. Taylor, 

11 Phila. (Pa.) 387. This was followed in 
Coroners Duties, 20 D. B. (Pa.) 685, by Sulz- 
berger, P. J. 

In Idaho, the constitution requires the su- 
preme court judges to report annually to the 
governor as to defects and omissions in ex- 
isting laws. 

It has been held that the courts are the 
judges of whether the questions presented 
to them for their opinion fall within the 
scope of the law, and, generally, whether the 
exigency requires them to act. The court 
usually require that the questions shall be 
matters of public law and not those involv- 
ing merely private rights; see Thayer, Leg. 
Essays 45 ; Story, Const. ; 6 A. &amp; E. Encyc. 
1065. 

See Legislative Poweb. 

They have no judicial force and cannot 
bind the body receiving them; Green v. Com., 

12 Allen (Mass.) 163; Taylor v. Place, 4 R. 
I. 362. A contrary view was taken in 70 Me. 
583 ; but see, contra, State v. Cleveland, 58 
Me. 573 ; Opinion of the Justices, 72 Me. 
562; and see In re Senate Bill No. 65, 12 
Colo. 466, 21 Pac. 478; 24 Am. L. Rev. 369, 
a full article by Hugo A. Dubuque. 

The Judicial Committee of the Privy 
Council may be asked questions by authority 
of the Crown. The House of Lords, when 
exercising judicial functions, may summon 
the judges and ask them questions; though 
its right to do so in its legislative capacity 
probably has ceased to exist. Any practice 
by which the Crown could question the 
judges, even if it ever existed, is now almost, 
or altogether, obsolete. The last instance 
was in 1760, when Lord Mansfield furnished 
answers to questions with reluctance. 106 
L. T. 916 (Privy Council). 

It is said that it. Is not easy to see how 
the opinion of the judges could govern the 
opinion of the House of Lords; MacQueen, 
App. Jurisd. of H. of L. 49. 

A .Canadian statute authorizing the Gov- 
ernor in Council to call upon the Supreme 
&lt;^ourt to answer questions of law or fact Is 
not ultra vires. 106 L. T. 916 (Privy Coun- 
cil). 

In an interesting article In 13 Harv. L. 
Rev. 358, by Mr. Veeder, he states that 
from 1827 to 1899 there were 125 cases in 
which the judges assisted the House of 
Lords and that of this number there are 
hardly more than a score of cases which are 
in any sense landmarks. Though the judges 



are called upon to advise, yet the decision 
rests with the House alone ; 10 01. &amp; F. 413, 
citing an instance where the 12 judges had 
given their opinion, and the Lord Chancellor 
satisfied the House that they were all wrong. 

OPIUM. The importation ' of opium into 
the United States is made unlawful after 
April 1, 1909, except for medicinal purposes. 

The prohibition or regulation of the sale of 
opium is within the police power of a state; 
State v. Lee, 137 Mo. 143, 38 S. W. 583. 

OPPOSITE. Over against, standing in 
front or facing. Bradley v. Wilson, 58 Me. 
360. See Sunbury S. F. &amp; T. B. Co. v. Grant 
(Pa.) 15 Atl. 706; 23 L. J. Ch. 45. 

OPPRESSION. An act of cinielty, severi- 
ty, unlawful exaction, domination, or exces- 
sive use of authority. U. S. v. Deaver, 14 
Fed. 597. 

OPPRESSOR. One who having public au- 
thority uses It unlawfully to tyrannize over 
another: as, if he keep him in prison until 
he shall do something which he is not law- 
fully bound to do. To charge a magistrate 
with being an oppressor is actionable; 1 
Stark. SI. 185. 

OPPROBRIUM. In Civil Law. Ignominy; 
shame; infamy. 

OPTION. Choice; election. 

A contract by which A, In consideration of 
the payment of a certain sum to B, acquires 
the privilege of buying from or selling to B, 
specified securities or property at a fixed 
price within a certain time. Story v. Salo- 
mon, 71 N. Y. 420; Harris v. Tumbrldge, 83 
N. Y. 93, 38 Am. Rep. 398. 

"A unilateral agreement, binding upon the 
optioner from the date of its execution, but 
[which] does not become a contract inter 
partes, in the sense of an absolute contract 
to convey on the one side and to purchase on 
the other, until exercised by the optionee;" 
Barnes v. Rea, 219 Pa. 279, 68 Atl. 836. An 
option is not a sale, but a right to exer- 
cise a privilege, and only when that privi- 
lege has been exercised in the manner pro- 
vided In the agreement does it become a 
binding contract ; id. It is said that options 
have been universally construed by the 
courts as binding agreements to keep an offer 
open; 18 Harv. L. Rev. 457; Perry v. Pas- 
chal, 103 Ga. 134, 29 S. E. 703 ; but Prof. Lang- 
dell takes the view that an option Is a com- 
plete unilateral contract, which can never be- 
come a bilateral contract, and differs entire- 
ly from an offer ; 18 Harv. L. Rev. 1, 11. 

As to how far an option to buy land works 
a conversion, see id. 1. 

Where notes are given to cover losses on 
deals in options In grain, a part of which is 
to be delivered, the illegality of a part taints 
the whole, the consideration being entire; 
Miles V. Andrews, 40 111. App. 155. See 
Dwight V. Badgley, 75 Hun 174, 27 N. Y. 



OPTION 



2422 



OB 



Supp. 107; [1892] 2 Q. B. 484; Scott v. 
Brown, 54 Mo. App. 606. The sale of com- 
modities to, be delivered at a future day is 
not per se unlawful where the parties intend 
in good faith to comply with the terms of 
the contract; Mohr v. Miesen, 47 Minn. 228, 
49 N. W. 862 ; Morrissey v. Broomal, 37 Neb. 
766^ 56 N. W. 383. See Wagee; Oonteacts. 
These options are of three kinds, viz. : 
"calls," "puts," and "straddles," or "spread 
eagles." A call gives A the option of calling 
or buying from B or not certain securities. 
A put gives A the option of selling or de- 
livering to B or not. A straddle is a combi- 
nation of a put and a call, and secures to A 
the right to buy of, or sell to, B or not. 
Where neither party, at the time of making 
the contract, intends to deliver or accept the 
shares, but merely to pay differences accord- 
ing to the rise or fall of the market, the con- 
tract is void either by virtue of statute or 
as contrary to public policy; 11 C. B. 538. 
In each transaction the law looks primarily 
at the intention of the parties ; and the form 
of the transaction is not conclusive; Story v. 
Salomon, 71 N. Y. 420 ; 5 M. &amp; W. 466 ; North 
v. Phillips, 89 Pa. 250. Option contracts are 
not prima facie gambling contracts ; Story v. 
Salomon, 71 N. T. 420. But see Lyon v. 
Cnlbertson, 83 III. 33, 25 Am. Rep. 349. See 
Dos Passos, Stock-Brokers. 

OPTIONAL WRIT. ° An original writ in 
the alternative, commanding either to do a 
thing or show cause why it has not been 
done. 3 Bla. Com. 274; Finch, Law 257. 

OPUS LOCATUM (Lat.). In Civil Law. 
A work (i. e. the result of work) let to an- 
other to be used. A work («. e. something 
to be completed by work) hired to be done 
by another. Vicat, Voc. Jur. Opus, Looare; 
L. 51, § 1, D. Loeat.; L. 1, § 1, D. ad leg. 
Bhod. 

OPUS IHANIFICIUM (from Lat. opus, 
work, mamis, hand). Manual labor. Fleta, 
1. 2, c. 48, § 3. 

OR. A disjunctive particle. 

As a particle, or is often construed and, 
and and construed or, to further the intent 
of the parties, in legacies, devises, deeds, 
bonds, and writings; Watkins v. Sears, 3 
Gill (Md.) 492; 3 Greenl. Ev. §§ 18, 25; 1 
Wills. Exrs. 932 ; 5 Co. 112 a ; Cro. Jac. 322 ; 
Courter v. Stagg, 27 N. J. Eq. 305; Dumont 
V. U. S., 98 U. S. 143, 25 L. Ed. 65; Kanne 
V. R. Co., 33 Minn. 419, 23 N. W. 854; but 
its more natural meaning, when used as a 
connective, is to mark an alternative and 
present a choice, implying an election to do 
one of two things ; New Haven Young Men's 
Institute v. New Haven, 60 Conn. 32, 22 Atl. 
447. It sometimes has the same effect as 
the word "nor"; In re Cody's Estate, 20 N. 
Y. Supp. 16. 

Where an Indictment is in the alternative, 
as forged or caused to be forged, it is bad 



for uncertainty; 1 Y. &amp; J. 22. But a de- 
scription of a horse as of a brown or bay 
color, in an indictment for larceny of such 
horse, is good; State v. Gilbert, 13 Vt. 647; 
and so an indictment describing a nuisance 
as in the highway or road; Eespublica v. 
Caldwell, 1 Dall. (Pa.) 150, 1 L. Ed. 77., 
See State v. R. Co., 28 Vt. 583. So, "break 
or enter," in a statute defining burglary, 
means "break and enter" ; RoUand v. Com., 
82 Pa. 326, 22 Am. Rep. 758; Com. r. Griffin, 
105 Mass. 185. 

The word or is used in the sense of to wit,. 
that is, in explanation of what precedes, and 
making it signify the same tiling. Thus, in 
an indictment, bank bills or promissory 
notes, they meant the same thing; Brown v. 
Com., 8 Mass. 59. 

ORACULUM (Lat). In Civil Law. The 

name of a kind of decision given by the 
Roman emperors. Thus, adoption by the 
emperor's divine wisdom (per sacrum oracu- 
lum), 

ORAL. Spoken, in contradistinction to 
written : as, oral evidence, which is evidence 
delivered verbally by a witness. Steph. Ev. 
135. Formerly pleadings were put in viva 
voce, or orally; Kerr's Act Law. When a 
pleading sets up a contract, and does not 
allege it was in writing, it will be taken to 
be oral ; Schreiber v. Butler, 84 Ind. 583. 

ORANDO PRO REGE ET REGNO. An 

ancient writ which issued, while there was 
no regular collect for a sitting parliament, 
to pray for the peace and good government of 
the realm. 

ORATOR. The party who files a bill. 
Oratrix, is used of a female pl-aintiff. Thesei 
words are disused in England, the customary 
phrases now being plaintiff and petitioner. 

In Roman Law. An advocate. Code 1. 3. 
33. 1. 

ORCINUS LIBERTUS. In Roman Law. 
A freedman who obtained his liberty by the 
direct operation of the will or testament of 
his deceased master was so called, being the 
freedman of the deceased (orcinus), not of 
the hwres. Hunter, Rom. L. 176. 

ORDAIN. To make an ordinance, to en- 
act a law. 

The preamble to the constltntion of the 
United States declares that the people "do 
ordain and establish this constitution for 
the United States of America." The third 
article of the sa:me constitution declares that 
"the judicial power shall be vested in one 
supreme court, and in such inferior courts 
as the congress may from time to time or- 
dain and establish." See Martin v. Hunter, 
1 Wheat (U. S.) 304, 324, 4 L. Ed. 97; Mc- 
Culloch V. Maryland, 4 Wheat (U S) 316 
403, 4 L. Ed. 579. 

To confer on a person the Holy orders of 



ORDAIN 



2423 



ORDER 



priest or deacon. Kibbe v. Antram, 4 Conn. 
134. 

ORDAINERS. An elected body of 21 
members appointed by Parliament In 1310 
to m^ke ordinances for the good of the 
realm. The whole administration passed 
into their hands. Stubbs, Early Plantagenets. 

ORDEAL. An ancient superstitious mode 
of trial. 

When in a criminal case the accused was 
arraigned, he might select the mode of trial 
either by God and his country, that is, by 
jury, or by God only, that is, by ordeal. 

The trial by ordeal was either by fire or 
by water, and perhaps in less important 
forms. Those who were tried by the former 
passed barefooted and blindfolded over nine 
hot glowing ploughshares, or were to carry 
burning irons in their hands, and according- 
ly as they escaped or not they were acquitted 
or condemned. The water ordeal was per- 
formed either in hot or cold water. In cold 
water, the parties suspected were adjudged 
innocent If their bodies were not borne up 
by the water contrary to the course of na- 
ture ; and if after putting their bare arms 
or legs into scalding water they came out un- 
hurt, they were taken to be innocent of the 
crime. 

It was supposed that God would, by the 
mere contrivance of man, exercise his power 
in favor of the innocent. 4 Bla. Com. 342; 
See Hurtado v. California, 110 U. S. 529, 4 
Sup. Ct. Ill, 292, 28 L. Ed. 232. 

It is said to have opened the door to cor- 
ruption, and that convictions were hard to 
get. It was condemned by the Lateran Coun- 
cil of 1215 and prohibited in England by writ 
addressed to certain itinerant justices in 
1219. 1 Holdsw. Hist. E. L. 143. 

■For a detailed account of the trial by or- 
deal, see Herbert, Antiq. of Inns of Court 
146. 

See Lea, Superstition and Force; Thayer. 
Evidence; 2 Poll. &amp; Maltl. Hist. E. L.; 2 
Besant, London. 

A man of good repute could usually clear 
himself by oath; but circumstances of grave 
suspicion or previous bad character would 
drive the defendant to stand trial by ordeal. 
Trial by battle was a late, or Norman institu- 
tion. Pollock, Sel. Essays in Anglo-Amer. 
L. Hist. 93. 

ORDEFFE or ORDELFE. A liberty 
whereby a man claims the ore found in his 
own land; also, the ore lying under land. 
Cowell. 

ORDELS. A kind of purgation, one by 
fire and one by water. Cowell. 

ORDENAMIENTO. In Spanish Law. An 
order from the sovereign and difCering from 
a cedula in form and in the mode of its pro- 
mulgation. Scbm. Civ. L. Introd. 93, n. 



ORDER. Command ; direction. 

An informal bill of exchange or letter of 
request requiring the party to whom it is 
addressed to deliver property of the person 
making the order to some one therein de- 
scribed. 

A designation of the person to whom a 
bill of exchange or negotiable promissory 
note is to be paid. See Treat v. Stanton, 14 
Conn. 445; Dakin v. Graves, 48 N. H. 45; 
Hinnemann v. Rosenback, 39 N. Y. 98. This 
order, in the case of negotiable paper, is usu- 
ally by indorsement, and may be either ex- 
press, as, "Pay to C D," or implied merely, 
as by writing A B [the payee's name]. 

See INDOBSEMENT ; Stoeb Obdebs. 

In French Law. The act by which the 
rank of preferences of claim, among cred- 
itors who have liens over the price which 
arises out of the sale of an immovable sub- 
ject, is ascertained. Dalloz, Diet 

In the Practice of Courts. An order is any 
direction of a court or judge made or enter- 
ed in writing, and not included in a judg- 
ment. N. Y. Code of Proc. § 400; Berryhill 
V. Smith, 51 la. 127, 50 N. W. 495. But a 
decree is often called an order. See Deceee. 
For distinction between order and requisi- 
tion, see Mills v. Martin, 19 Johns. (N. Y.) 7. 

In Governmental Law. By this expression 
is understood the several bodies which com- 
pose the state. In ancient Rome, for ex- 
ample, there were three distinct orders: 
namely, that of the senators, that of the pa- 
tricians, and that of the plebeians. 

In the United States there are no orders 
of men; all men are equal in the eye of the 
law. See Rank. 

ORDER IN COUNCIL. An order by the 
sovereign with the advice of the priyy coun- 
cil. 

Orders in council are either prerogative, or 
issued under parliamentary authority. The 
former, if derogating from an act of parlia- 
ment, are void, but, subject to this rule, the 
ancient rights of the crown, so far as they 
have actually been exercised with fairly defi- 
nite continuity, still remain. Any exercise 
of the prerogative in new directions might 
not be tolerated by parliament. As to the 
other class, statutes frequently delegate either 
to the crown (the executive) or even to the 
minister of a department charged with car- 
rying out an act, the power to make rules 
and orders under it The difference between 
orders in council and those made by a single 
minister is more apparent than real ; the 
form and contents are usually settled by the 
departments concerned; the approval by the 
privy council is a pure formality. Jenks, 
Hist E. L. 187. 

See Peivy Council. 

ORDER NISI. A conditional order, which 
is to be confirmed unless something be done, 
which has been required, by a time specified. 
Eden, Inj. 123. 



ORDER OF DISCHAR&amp;E 



2424 



ORDINANCE 



ORDER OF DISCHARGE. In England, 
an order made under the Bankruptcy Act of 
1869, by a court of bankruptcy, the efCect of 
which is to discharge a bankrupt from all 
debts, claims, or demands provable under 
the bankruptcy. Robson, Bkcy.; Whart. Lex. 

ORDER OF FILIATION. The name of a 
judgment rendered by two justices, having 
jurisdiction in such case, in which a man 
therein named is adjudged to be the putative 
father of a bastard child, and it is further 
adjudged that he pay a certain sum for its 
support. 

The order must bear upon its face — first, 
that it was made upon the complaint of the 
township, parish, or other place where the 
child was born and is chargeable; second, 
that it was made by justices of the peace 
having jurisdiction ; 1 Salk. 122, pi. 6 ; 2 Ld. 
Raym. 119T; third, the birthplace of the 
child; fourth; the examination of the puta- 
tive father and of the mother, but it is Said 
the presence of the putative father is notj 
requisite if he has been summoned; Cald., 
308; /S/tfc, the judgment that the defendant 
is the putative father of the child; Dougl.: 
662; sixth, that he shall maintain the child! 
as long as he shall be chargeable to the 
township, parish, or other place, which must 
be named; 1 Salk. 121, pi. 2; but the order 
may be that the father shall pay a certain 
sum weekly as long as the child is chargeable 
to the public; Ventr. 210; seventh, it must 
be dated, signed, and sealed by the justices. 
Such order cannot be vacated by two other 
justices; Carpenter v. Whitman, 15 Johns. 
(N. Y.) 208. See Donely v. Rockfeller, 4 
Cow. (N. Y.) 253; Harrington v. Ferguson, 2 
Blackf. (Ind.) 42. , 

ORDER OF REVIVOR. In English Prac- 
tice. An order as of course for the continu-, 
ance of an abated suit. It superseded the 
bill of revivor. See 15 &amp; 16 Vict. c. 86, s. 
52. Whart. I/ex. 

ORDERS. Rules made by a court or oth- 
er competent jurisdiction. The formula is 
generally in these words: It is ordered, etc' 

The instructions given by the owner tOi 
the captain or commander of a ship, which i 
he is to follow in the course of the voyage.' 

Rules regulating the procedure of the High. 
Court of Justice in England. They were' 
made by judges under statutory powers and! 
have the force of a statute. ' [ 

ORDERS OF THE DAY. Matters . which 
the house of commons may have agreed be- 
forehand to consider on any particular day, 
are called the "orders of the day," as oppos-l 
ed to original motions. May's Pari. Prac. 
Orders of the day are also known to the; 
parliamentary practice of this country ; Gush.; 
Pr. Leg. Assemblies 1512. 

ORDINANCE. A law; a statute; a decree.' 

Municipal ordinances are laws passed by, 

the governing body of a municipal corpora-' 



tion for the regulation of the affairs of the 
corporation. The term ordinance is now the 
usual denomination of such acts, although 
in England and in some states, the technical- 
ly more correct term by-law is in common 
and approved use. The main feature of such 
enactments is that they are local, as dis- 
tinguished from the general applicability of 
the state laws; hence, the word law, with 
the prefix hy, should in strictness be prefer- 
red to the word ordinance; Horr. &amp; Bemis, 
Mun., Pol. Ord. 1. See Bills v. Goshen, 117 
Ind. 221, 20 N. E. 115, 3 L. R. A. 261 ; By- 
Laws. 

They are not in a constitutional sense, 
public laws, but mere local rules or by-laws, 
police or domestic regulations, devoid in 
many respects of the characteristics of pub- 
lic or general laws; Mclnerney v. Denver, 
17 Colo. 302, 29 Pac. 516. 

This word is more usually applied to the 
laws of a corporation than to the acts of the 
legislature. The following account of the 
difference between a statute and an ordi- 
nance is from Bacon's Abridgment, Statute 
(A). "Where the proceeding consisted only 
of a petition from parliament and an an- 
swer from the king, these were, entered on 
the parliament roll; and if the matter was 
of a public nature, the whole was then styled 
an ordinance: if, however, the petition and 
answer were not only of a public but a novel 
nature, they were then formed into an act 
by the king, with the aid of his council and 
judges, and entered on the statute roll" 
See Co. Litt. 159 &amp;, Butler's note ; -3 Reeve^ 
Hist. Eng. Law 146. 

According to Lord Coke, the difference be- 
tween a statute and an ordinance is that 
the latter has not had the assent of the 
king, lords, and commons, but is made merely 
by two of these powers. Co. 4th Inst. 25.. 
See Barrington, Stat. 41, note (x). 

A resolution of a council is but another name 
for an ordinance, and if it is a legislative 
act It is immaterial whether it is called a 
resolution or an ordinance, so long as the re- 
quirements essential to the validity of an or- 
dinance be observed; Wain's Heirs v. Phila- 
delphia, 99 Pa. 880 ; but if the action is mere- 
ly declaratory of the will of the corporation, 
it is proper to act by resolution, which is- 
more in the nature of a ministerial act ; Alma 
V. Bank, 60 Fed. 203. 8 0. C. A. 564, 19 U.. 
S. App. 622. 

A municipal ordinance not passed under 
legislative authority, is not a law of the 
state within the meaning of the constitution- 
al prohibition against state laws impairing 
the obligation of contracts ; Hamilton G. L. 
&amp; C. Co. V. Hamilton, 146 V. S. 258, 13 Sup. 
Ct. 90, 36 L. Ed. 963 ; but if properly adopted- 
under a power granted by the state legisla- 
ture, it is to be regarded as an act of the 
state within the fourteenth amendment; 
North American C. S. Co. v. Chicago, 211 D.. 



ORDINANCE 



2425 



ORDINANCE 



S. 306, 29 Sup. Ct. 101, 53 L. Ed. 195, 15 Ann. 
Cas. 276. 

Equity win not restrain a city council 
from passing an ordinance allowing a gas 
company to lay pipes in its streets, although 
it has granted the exclusive privilege to do 
so to another company; Montgomery G.-L. 
Co. V. Montgomery, 87 Ala. 245, 6 South. 113, 
4 L. R. A. 616. An illegal ordinance may be 
enjoined before passage; Roberts v. Louis- 
ville, 92 Ky. 95; 17 S. W. 216, 18 L. R. A. 
844; or the enforcement of an Invalid ordi- 
nance; RushvlUe V. Gas Co., 132 Ind. 575, 
28 N. E. 853, 15 L. R. A. 321. 

While it is not per se negligence for a 
railroad company to run its cars at a higher 
rate of speed than the limit specified in a 
city ordinance, yet the fact that it did so 
in the particular case may be taken into 
consideration by the jury, with other evi- 
dence, in ascertaining whether or not the de- 
fendant was negligent; Lederman v. R. Co., 
165 Pa. 118, 30 Atl. 725, 44 Am. St. Rep. 644. 
In Mahan v. Transfer Co., 34 Minn. 29, 24 N. 
W. 293, it was held that running a railroad 
train at a speed exceeding the limit fixed by 
ordinance was evidence Of negligence which 
should go to the jury. That it is negligence 
per se is held in Schlereth v. R. Co., 96 Mo. 
509, 10 S. W. 66 ; South &amp; N. A. R. Co. v. 
Donovan, 84 Ala. 141, 4 South. 142 ; Chicago 
&amp; A. R. Co. V. Estfen, 178 111. 197, 52 N. E. 
954. (Also where the rate of speed is fixed 
by statute; Dodge v. R. Co., 34 la. 276.) An 
ordinance as to the right of way between 
two street cars is not conclusive of the ques- 
tion of negligence; it is merely evidence of 
negligence on the part of the driver of a car 
whose duty under it was to give way; Con- 
nor V. Traction Co., 173 Pa. 602, 34 Atl. 238. 
An ordinance requiring an opening in a 
street to be guarded is admissible in evi- 
dence in an. action against a city for in- 
juries sustained by falling into such open- 
ing; McNerney v. Reading. City, 150 Pa. 611, 
25 Atl. 57. 

An ordinance which has the effect of 
denying to the owner of property the right 
to conduct a lawful business thereon is in- 
valid, unless the business is of such a nox- 
ious or offensive character that the health, 
safety, or comfort of the commimity require 
its exclusion from the neighborhood ; Ex 
parte Whitwell, 98 Cal. 73, 32 Pac. 870, 19 
L. R. A. 727, 35 Am. St. Rep. 152 ; this does 
not extend to an asylum for the treatment of 
mild forms of insanity; id.; or to a laundry; 
In re Hong Wah, 82 Fed. 623. 

The burden of proving the unreasonable- 
ness of an ordinance is upon him who denies 
its validity; Trenton Horse R. Co. v. Tren- 
ton, 53 N. J. L. 132, 20 Atl. 1.076, 11 L. R. A 
410 ; Twilley v. Perkins, 77 Md. 252, 26 Atl. 
286, 19 L. R. A. 632, 39 Am. St. Rep. 408.- 

A copy of an ordinance having the seal 
of the city attached is admissible in evi- 
dence without further proof; 113 Mo. 395. 



See Municipal Corporations ; Nuisance ; 
Police Powers; McQuillin, Ordinances. 

ORDINANCE OF 1647. A law passed by 
the Colony of Massachusetts, still in force, 
in a modified form, whereby the state owns 
the great ponds within its confines, which 
are held in trust for public uses. Watuppa 
Reservoir Co. v. Fall River, 147 Mass. 548, 
18 N. K 465, 1 L. R. A. 466. See Lake. 

ORDINANCE OF 1648. A law of England 
relating to admiralty jurisdiction. See 
Bened. Adm. § 99. It expired in 1660. 

ORDINANCE OF 1681. An ordinance of 
France relating to maritime affairs. See 
Bened. Adm. § 173. 

ORDINANCE OF 1787. A statute for the 
government of the Northwest Territory. See 
Ohio. 

It has no force in Illinois except as incor- 
porated in its constitution ; Dixon v. People, 
168 111. 179, 48 N. E. 108, 39 L. R. A. 116. 

ORDINANCES OF EDWARD I. Two 

laws and ordinances published by Edward I. 
in the second year of his reign, at Hastings, 
relating to admiralty jurisdiction. These 
are said to have been the foundation of a 
consistent usage for a long time. See Bened. 
Adm. § 55. 

ORDINARY, In Ecclesiastical Law. An 

officer who had original jurisdiction in his 
own right, and not by deputation. 

In England, the ordinary was an officer 
who has immediate jurisdiction in eccle- 
siastical causes. Co. Litt. 344. A bishop is 
an ordinary, and archbishops are the ordi- 
naries of the whole province. Also an arch- 
deacon ; and an officer of the royal house- 
hold. 

The executor legitimus "deriveth his au- 
thoritie from the law," who is the bishop or 
ordinary of every diocese. The executor 
cbativus "deriveth his authoritie from the 
bishop or ordlnarie," who is the person usu- 
ally known as the administrator. 2 Holdsw. 
Hist. E. L. 447. It was not the ordinary 
who administered the estate, but his repre- 
sentative. 

See Executors and Administrators. 

In the United States, the ordinary pos- 
sesses, in those states whei-e such officer ex- 
ists, powers identical with those usually 
vested in the courts of probate. In South 
Carolina, the ordinary was a judicial officer ; 
Hays V. Harley, 1 Mill, Const. (S. C.) 267; 
Boggs V. Hamilton, 2 Mill, Const. (S. C.) 
384; but the office no longer exists in South 
Carolina, where they have now a probate 
court. Georgia retains courts of ordinary; 
also New Jersey. See Courts of Ordinaet. 

ORDINARY CALLING. Those things 
which are repeated daily or weekly in the 
course of business. Ellis v. State, 5 Ga. App. 
615, 63 S. B. 588. 



ORDINARY CARE 



2426 ORDONNANCE DE LA MARINE 



ORDINARY CARE. That degree of care 
which men of ordinary prudence exercise in 
taking care of their own persons or prop- 
erty. Story, Bailm. 11; Smith v. Whittier, 
95 Cal. 279, 30 Pac. 529 ; Ohio &amp; M. R. Co. v. 
Thillman, 143 III. 127, 32 N. E. 529, 36 Am. 
St. Rep. 359; Cohn v. Kansas City, 108 Mo. 
387, 18 S. W. 973; Cronk v. R. Co., 3 S. D. 
93, 52 N. W. 420. It can only he determined 
by the circumstances of each particular case 
whether ordinary care was used. This de- 
gree of care is said to be required of bailees 
for the mutual benefit of bailor and bailee ; 
Whitney v. Lee, 8 Mete. (Mass.) 91; Bizzell 
y. Booker, 16 Ark. 308; Neal v. Gillett, 23 
Conn. 437, 443; Foster v. Goddard, 40 Me. 
64; The Farmer v. McCraw, 26 Ala. 203, 72 
Am. Dec. 718 ; 36 E. L. &amp; E. 506. See Bird 
V. Everard, 4 Misc. 104, 23 N. Y. Supp. 1008; 
Zell V. Dunkle, 156 Pa. 353, 27 Atl. 38; 
Bailee; Negliqence; Case. 

ORDINARY NEGLIGENCE. The want of 
such care and diligence as reasonably pru- 
dent men, generally, in regard to the sub- 
ject-matter of inqiiiry, would use to prevent 
or avoid an injury. Chicago, K. &amp; W. R, Co. 
V. Fisher, 49 Kan. 460, 30 Pac. 462. See 
Gboss Negligence. 

ORDINARY SKILL. Such skill as a per- 
son conversant with the matter undertaken 
might be reasonably supposed to have. 11 
M. &amp; W. 113 ; Percy v. MiUaudon, 8 Mart. 
N. S. (La.) 08, 75; Boon v. Murphy, 108 N. 
C. 187, 12 S. E. 1032. See Negligence. 

One who undertakes to act in a profes- 
sional or other clearly defined capacity is 
bound to exercise the skill appropriate to 
such capacity; Webb, Pollock, Torts 26; 
though the undertaking be gratuitous; 
Leighton v. Sargent, 31 N. H. 119, 64 Am. 
Dec. 323. 

ORDINATION. Theactof conferring the 
orders of th^ church upon an individual. 
See Oedain. 

OROINATIONE CONTRA SERVIENTES. 

A writ that lay against a servant for leaving 
his master contrary to the ordinance of 23 
&amp; 24 Edw. III. 

ORDINIS BENEFICIUM. See Behtefi- 
ciuM Oruinis. 

ORDINUM FUGITIVI. Those of the reli- 
gious who deserted their houses, and, throw- 
ing off the habits, renounced their particular 
order in contempt of their oath and other ob- 
ligations. Par. Antiq. 388. 

ORDNANCE DEBENTURES. Bills which 
were issued by the Board of Ordnance on 
the treasurer of that office for the payment 
of stores, etc. 

ORDO JUDICIORUM. The order of judg- 
ment; the rule by which the due course of 
hearing each cause was prescribed. 4 
Reeves, Hist. Eng. L. 17. 



ORDONNANCE DE LA MARINE. See 

Code. 

ORE LEAVE. A right to dig and take ore 
from land. Ege v. Kille, 84 Pa. 340. 

ORE TENUS (Lat). Verbally; orally. 

Formerly the pleadings of the parties were 
ore tenus; and the practice is said to have 
been retained till the reign of Edward III. 
3 Reeve, Hist. Eng. Law 95; Steph. PI., 
Andr. ed. § 59. And see Bracton 372 6. 

In chancery practice, a defendant may 
demur at the bar ore tenus; 3 P. Wms. 
370; if he has not sustained the demurrer 
on the record; 1 Swanst. 288; Mitf. PI., 
Tyler's ed. 310; 6 Ves. 779; 8 id. 405; 17 
id. 215. 

OREGON. One of the Pacific coast states 
of the American Union, and the thirty-third 
state admitted therein. 

The territory called Oregon from the early name, 
ot its principal river — now called the Columbia— 
originally Included all the country on the Pacific 
coast west of the Rocky mountains, and north of the 
42d and south of the 19th parallel of north lati- 
tude. From 181S to 1816, this country was subject 
to the Joint occupancy of the subjects and citizens 
of Great Britain and the United States, under a 
disputed claim of title, which was settled by the 
treaty of June 15, of the latter year. In favor of the 
United States. 

As early as 1841 the American and British oc- 
cupants west of the Cascade mountains commenced 
to organize a government for their protection. 
These efforts resulted in the' establishment of the 
"Provisional Government of Oregon" by a popular 
vote on July 5, 1845, consisting of an executive, 
legislative (one house), and judicial department, 
the officers of which were chosen and supported by 
the voluntary action of the citizens and subjects of 
both nations. On March 3, 1849, this government 
was superseded by the territorial government pro- 
vided by congress in the act of August 14, 1848. 
On September 27, 1850, congress passed the "dona- 
tion act," giving the settlers the land held by them 
under the provisional government— 640 acres to a 
married man and his wife, and 320 to a single man. 

In 1857 a state constitution was formed and 
ratified by the people, under which a portion of the 
territory was admitted into the Union on February 
14, 1859, on an e(iual tooting with the other states. 
There were amendments in 1902, 1906 and 1908. The 
initiative, referendum and recall are adopted. 

ORFGILD (Sax. or/, cattle, gild, payment. 
Also called cheapgild). A payment for cat- 
tle, or the restoring them. Cowell. 

A restitution made by the hundred or 
county of any wrong done by one that was 
in pledge. Lambard, Archaion 125, 126. 

A penalty for taking away cattle. Blount 

ORGANIC LAW. The fundamental law or 
constitution of a state or nation. See Law. 
An act of congress providing for the admis- 
sion of a new state is usually termed an 
organic act, and sometimes an enabling act. 

ORIGINAL. An authentic instrument 
which is to serve as a model or example to 
be copied or imitated. 

Qriginals are single or duplicate: single 
when there Is but one; duplicate, when 
there are two. In the case of printed doc- 
uments, aU the impressions are original*, 



ORIGINAL, 



2427 ORIGINAL. ENTRY, BOOKS OF 



•or in the nature of duplicate origmaU, and 
any copy will be primary evidence ; 2 Stark. 
130. But see Sweigart v. Lowmarter, 14 S. 
&amp; K. (Pa.) 20O. See Teleguaph; Photo- 
graph ; Pebss Copy. 

When an original document is not evi- 
dence at common law, and a copy of such 
original is made evidence by an act of the 
legislature, the original is not therefore 
made admissible evidence by implication; 
2 Campb. 121, n. 

Not deriving authority from any other 
source: as, original jurisdiction, original 
writ, original bill, and the like. 

ORIGINAL AND DERIVATIVE ESTATES. 

An original estate is the first of several es- 
tates, bearing to each other the relation of a 
particular estate and a reversion. It is con- 
trasted with a derivative estate, which is a 
particular interest carved out of another 
estate of larger extent 1 Pres. Est. *123. 

ORIGINAL BILL. A bill relating to a 
matter not before brought before the court 
by the same parties, standing in the same in- 
terests. Mitt Eq. PI. 33. 

Proceedings in a court of chancery are 
either commenced by way of information, 
when the matter concerns the state or those 
under its protection, or by original petition 
or bill when the matter does not concern the 
state or those under its protection. The 
original bill states simply the cause of com- 
plaint, and asks for relief. It is composed of 
nine parts; Story, Bq. PL 7; and is the 
foundation of all subsequent proceedings be- 
fore the court. See 1 Dan. Ch. Pr., 6th Am. 
ed. *314; Bni. 

ORIGINAL CONSTRUCTION. This term, 
as distinguished from repairs, has a tech- 
nical meaning in relation to railroads, and 
is that construction of bridges, etc., that is 
necessary to be done before the railroad can 
be opened, no't such structures as are intend- 
ed to replace worn-out counterparts. Cleve- 
land, C. &amp; S. Ry. Co. V. Trust Co., 86 Fed. 
73. 

ORIGINAL CONVEYANCES (sometimes 
called primary conveyances). Those con- 
veyances by means whereof the benefit or es- 
tate is created or first arises : viz. feoffment, 
gift, grant, lease, exchange, partition. 2 Bla. 
Com. 309; 1 Steph. Com., 11th ed. 464. 

ORIGINAL ENTRY, BOOKS OF. The 

first entry made by a merchant, tradesman, 
or other person in his account-books, charg- 
ing another with merchandise, materials, 
work, or labor, or cash, on a contract made 
between them. 

Such an entry, to be admissible as evi- 
dence, must be made in a proper book. In 
general, the books in which the first entries 
are made, belonging to a merchant, trades- 
man, or mechanic, in which are charged 
goods sold and delivered or work and labor 
done, are received in. evidence. There are 



many books which are not evidence, a few 
of which will be here enumerated. A book 
made up by transcribing entries made on a 
slate by a journeyman, the transcript being 
made on the same evening, or sometimes not 
until nearly two weeks after the work was 
done, was considered as not being a book of 
original entries ; Kessler v. McConachy, 1 
Rawle (Pa.) 435; Hartley v. Brookes, 6 
Whart (Pa.) 189. A book purporting to be 
a book of original entries, containing an en- 
try of the sale of goods when they were or- 
dered, but before delivery, is not a book of 
original entries; Rhoads v. Gaul, 4 Rawle 
(Pa.) 404, 27 Am. Dec. 277. And unconnect- 
ed scraps of paper, containing, as alleged, 
original entries of sales by an agent, on ac- 
count of his principal, and appearing on their 
face to be irregularly kept, are ndt to be con- 
sidered as a book of original entries ; Thom- 
son V. McKelvey, 13 S. &amp; R. (Pa.) 126; corir 
tra, Smith v. Smith's Ex'x, 4 Harring. (Del.) 
532. A notched stick kept as a tally was ad- 
mitted to prove items of different amounts 
indicated by different cuts and notches ; Row- 
land V. Burton, 2 Harring. (Del.) 288. 

The entry must be made in the course of 
business, and with the intention of making 
a charge for goods sold or work done; it 
ought not to be made after the lapse of one 
day; Petrie v. Lynch's Adm'r, 1 N. &amp; McO. 
(S. C.) 130; Curren v. Crawford, 4 S. &amp; R. 
(Pa.j 5. Memoranda of sales found in an ac- 
count-book are competent, when made con- 
temporaneously with orders, by a witness 
knowing them to state correctly the facts ; 
The Sylvan Stream, 35 Fed. 314. 

The entry must be made in an intelligible 
manner and not in figures or hieroglyphics 
which are understood by the seller only;. 
Rhoads v. Gaul, 4 Rawle (Pa.) 404, 27 Am. 
Dea 277. A charge made in the gross as 
"190 days work;" Petrie v. Lynch's Adm'r, 
1 N. &amp; McC. (S. C.) 130; or "for medicine 
and attendance," or "thirteen dollars for 
medicine and attendance on one of the Gener- 
al's daughters in curing flie hooping-cough ;" 
Hughes V. Hampton, 2 Tread. Const. (S. C.) 
745, were rejected. An entry of goods with- 
out carrying out any prices proves, at most, 
only a sale; and the jury cannot, without 
other evidence, fix any price; Hagaman v. 
Case, 4 N. J. L. 370. The charges should be 
specific and denote the particular work or 
service charged as it arises daily, and the 
quantity, number, weight, or other distinct 
designation of the materials or articles sold 
or furnished, and attach the price and value 
to each item ; Hughes v. Hampton, 2 Tread. 
Const. (S; C.) 745; Petrie v. Lynch's Adm'r, 
1 N. &amp; McO. (S. C.) 130. 

The entry must, of course, have been made 
by a person having authority to make it; 
Rhoads v. Gaul, 4 Rawle (Pa.) 404, 27 Am. 
Dec. 277; and with a view to charge the 
party; Walter v. BoUman, 8 Watts (Pa.) 
545. 



ORIGINAL, ENTRY, BOOKS OP 2428 



ORIGINAL JURISDICTION 



The entry must be made contemporaneous- 
ly with the delivery of the goods; Burley v. 
Bank, 111 U. S. 216, 4 Sup. Ct. 341, 28 L. Ed. 
406; Wells v. Hobson, 91 Mo. App. 379; Mc- 
Knlght V. Newell, 207 Pa. 562, 57 Atl. 39; 
Schnellbacher v. Plumbing Co., 108 111. App. 
486; if made before the property In the 
goods has passed, the book Is not admissible 
in evidence; Laird v. Campbell, 100 Pa. 159; 
nor is it if made . subsequently ; Schnellbach- 
er V. Plumbing Co., 108 111. App. 486. 

The proof of the entry must be made by 
the person who made it. If made by the 
seller, he Is competent to prove it from the 
necessity of the case, although he has an 
interest in the matter in dispute; Beach v. 
Mills, 5 Conn. 496 ; Vosburgh. v. Thayer, 12 
Johns. (N. Y.) 461 ; Poultney v. Koss, 1 Dall. 
(Pa.) 239, 1 Li. Ed. 117. When made by a 
clerk, It must be proved by him. But in ei- 
ther case, when the person who made the 
entry is out of the reach of the process of 
the court, as in the case of death,' or absence 
from the state, the handwriting may be prov- 
ed by a person acquainted with the hand- 
writing of the person wlio made the entry ; 
Hay V. Kramer, 2 W. &amp; S. (Pa.) 137; if he is 
absent, proof must first be made that he can- 
not be found; Railway Co. v. Henderson, 57 
Ark. 402, 21 S. W. 878. But the plaintiff was 
not competent to prove the handwriting of a 
deceased clerk who made the entries ; 1 Bro. 
App. llil. A book containing entries in de- 
fendant's handwriting of payments by him 
to payee in her lifetime, on the note In ac- 
tion, is not admissible as evidence in de- 
fendant's favor; Wells' Adm'r y. Ayers, 84 
Va. 341, 5 S. ,E. 21. 

. The books and original entries, when prov- 
ed by the supplementary oath of the party, 
are prima facie evidence of the sale and de- 
livery of goods, or of work and labor done; 
Ducoign V. Schreppel, 1 Yeates (Pa.) 347; 
May V. Brownell, 3 Vt. 463; Herlock's Adm'rs 
V. Riser, 1 McCord (S. C.) 481; Bowers v. 
Dunn, 2 Root (Conn.) 59. But they are not 
evidence of money lent or cash paid; Brad- 
ley V. Goodyear, 1 Day (Conn.) 104; or of 
the time a vessel lay at the plaintiff's wharf ; 
Wilmer v. Israel, 1 Browne (Pa.) 257; or 
of the delivery of goods to be sold on commis- 
sion; Murphy v. Cress, 2 Whart. (Pa.) 33. 

These entries are sometimes evidence in 
suits between third parties; Mcholls v. 
Webb, 8 Wheat. (U. S.) 326, 5 L. Ed. 628; 
2 P. &amp; D. 573; Welsh v. Barrett, 15 Mass. 
880; Halliday v. Martinet, 20 Johns. (N. Y.) 
168, 11 Am. Dec. 262; New-Haven County Bk. 
V. Mitchell, 15 Conn. 206; Pattoh's Adm'rs 
V. Ash, 7 S. &amp; R. (Pa.) 116; 1 Y. &amp; C. 53; 
and also in favor of the party himself; Cogs- 
well V. DoUiver, 2 Mass. 217, 3 Am. Dec. 45 ; 
Slade V. Teasdale, 2 Bay (S. C.) 172; Lamb 
V. Hart, id. 362 ; Bumham's Adm'r v. Adams, 
5 Vt. 313; Anchor Mill Co. v. Walsh, 108 Mo. 
277, 18 S. W. 904, 32 Am. St. Rep. 600. 



ORIGINAL JURISDICTION. See Jubis- 

DICTION. 

ORIGINAL PACKAGE. The casing in 
which imported merchandise is kept and 
handled in coui^e of transportation, whether 
hogsheads, bales, bottles, or boxes. 

The package delivered by the shipper to 
the carrier at the Initial point of shipment 
in the exact condition in which It was ship- 
ped. In the casie of liquors in bottles, if the 
bottles are shipped singly, each is an origi- 
nal package, but If a number are fastened 
together and marked, or are together In a 
box, etc., such box, etc., constitutes the origi- 
nal package; Guckenhelmer v. Sellers, 81 
Fed. 997; State v. Winters, 44 Kan. 723, 25 
Pac. 235, 10 L. R. A. 616. 

An original package is a bundle put up for 
transportation and usually consists of a 
number of things bound together and con- 
venient for handling; State v. Board of As- 
sessors, 46 La. Ann. 145^ 15 South. 10, 49 Am. 
St. Rep. 318, a case of Imports and not of 
Interstate commerce. 

An original package, trade In which is 
protected by the federal constitution, is such 
form and size of package as is used by pur- 
chasers or shippers for the purpose of secur- 
ing both convenience in handling and securi- 
ty In transportation of merchandise between 
dealers In the ordinary course of commerce; 
Com. v. SchoUenberger, 156 Pa. 201, 27 Atl. 
30, 22 L. R. A. 155, 36 Am. St Rep. 32. 

"The term original package is not defined 
by any statute and is simply a convenient 
form of expression ♦ * • to indicate 
that a license tax could not be exacted pf 
an importer of goods from a foreign country, 
who disposes of such goods in the form In 
which they were imported." Cook v. Mar- 
shall Co., 196 tr. S. 261, 25 Sup. Ct. 233, 49 
L. Ed. 471. The size of the package does 
not seem to be capable of definition, but it 
cannot be held that any package which could 
not be commercially transported from one 
state to anothier as a separate importation 
could be considered as an original package. 
Id. 

A definition which is quoted as "common- 
ly accepted and believed by us to be correct" 
is that "It Is a bundle put up for transporta- 
tion or commercial handling and usually con- 
sisting of a number of things bound together 
convenient for handling and conveyance"; 
McGregor v. Cone, 104 la. 465, ,73 N. W. 
1041, 39 L. R. A. 484, 65 Am. St. Rep. 522; 
where there is possibly as good an expres- 
sion of the matter as may be found: "The 
original package then, is that package which 
is delivered by the importer to the carrier 
at the Initial point of shipment In the exact 
condition in which it was shipped." 

The phrase "original package," though 
more in common use in connection with liti- 
gation over the state liquor laws, was in fact 
originated by Marshall, C. J., in Brown v. 



ORIGINAL PACKAGE 



2429 



ORIGINAL PACKAGE 



Maryland, where It was held that a "license 
tax could not be exacted of an importer of 
goods from a foreign country who disposes 
of such goods in the form in which they were 
imported" ; Brown v. Maryland, 12 Wheat. 
(U. S.) 419, 442, 6 L. Ed. 678, where it was 
held that a license tax for disposing of the 
property "in the original form or package 
in which it was imported is a duty on im- 
ports and unconstitutional." 

That case related to imports from a for- 
eign country, and It was also held that the 
thing imported did not lose its distinctive 
character as an import until it had become 
"incorporated and mixed up with the mass 
of property in the country." The same doc- 
trine was afterwards applied to interstate 
commerce and was expressed in very nearly 
the same terms in Vance v. Vandercook Co., 
170 U. S. 438, 18 Sup. Ct. 674, 42 L. Ed. 1100. 
In that case the court stated as elementary 
propositions, entirely concluded by previous 
adjudications: (a) The states have plenary 
power to regulate the sale of intoxicating 
liquors within their borders depending solely 
on the judgment of the legislatures, provided 
always they do not invade rights secured by 
the United States constitution, or discrimi- 
nate against the rights of residents or citi- 
zens of other states, (b) The right to send 
liquorfe from one state into another, and the 
act of sending the same, is interstate com- 
merce, the regulation whereof is committed 
to congress, and, hence, a state law which 
denies such a right, or substantially inter- 
feres with or hampers the same, is unconsti- 
tutional, (c) An incident of the power to 
ship merchandise from one state into anoth- 
er is the right, in the receiver of the goods, 
to sell them in the original packages, any 
state regulation to the contrary notwith- 
standing; that is to say, the goods received 
by Interstate commerce remain under the 
shelter of the commerce clause until by a sale 
in the original package they have been com- 
mingled with the general mass of property 
in the state. This last phraseology, first ex- 
pressed by Marshall, C. J., and repeated al- 
most in the same words 7Q years after, has- 
been criticised as unsatisfactory ; Cooke, 
Commerce Clause, sec. 17. But the expresr 
sion would seem to have been repeated in 
effect too often to make it probable that it 
would be abandoned. It occurs as late as 
1906 in Rearick v. Pennsylvania, 203 U. S. 
507, 27 Sup. Ct. 159, 51 L. Ed. 595. 

The form and size of a package the Im- 
porter determines for himself, and its size 
has no bearing on the question whether it is 
"original" ; In re Belne, 42 Fed. 545 ; State 
V. Winters, 44 Kan. 723, 25 Pac. 235, 10 L. 
R. A. 616. It has varied from the small 
boxes containing ten cigarettes; Iowa v. 
McGregor, 76 Fed. 956; McGregor v. Cone, 
104 la. 465, 73 N. W. 1.041, 39 L. R. A. 484, 65 
Am. St. Rep. 522; In re May, 82 Fed. 422; 



to carload lots of coal; McNeill v. R. Co., 
202 U. S. 543, 26 Sup. Ct. 722, 50 L. Ed. 1142; 
but where liquor in casks was shipped In 
carload lots the cask was the original pack- 
age ; TJ. S. V. Liquid Extracts, 170 Fed. 449, 
where it was said: "The idea of the orig- 
inal package may well be made to cover cer- 
tain forms of property which do not ordi- 
narily admit of being packed or incased in 
any other manner than in the car or vessel 
in which they are transported, such, for in- 
stance, as steel beams, threshing machines 
and other bulky articles." 

Where an agent procured orders for en- 
larging photographs and delivered them with 
frames fitted to them which he tried to sell, 
the pictures having been ordered and the 
frames not, he wap convicted of peddUng 
without a license, the picture and frame to- 
gether not being an original package; State 
V. Montgomery, 92 Me. 433, 43 Atl. 13. 

Labelling- a bottle or small bundle "orig- 
inal package" has no effect; Keith v. State, 
91 Ala. 2, 8 South. 353, 10 L. R. A. 430, 
where small bottles of liquor, wrapped in 
paper and so labelled, were packed in an 
open box, the box was the original package 
and not the bottle. But where cigarettes 
were transported In small paper packages 
containing ten each not being boxed but 
thrown loosely Into baskets, held that such 
paper parcels were not original packages, 
and that the importations were made for 
the purpose of evading the law of the state 
prohibiting their sale; Austin v. Tennessee, 
179 U. S. 343, 21 Sup. Ct 132, 45 L. Ed. 224, 
where It was established that the court may 
consider the bona fides of the construction 
of the packages and refuse to permit an in- 
tentional invasion of the state law; and to 
the same effect; Com. v. Zelt, 138 Pa. 615, 
21 Atl. 7, 11 L. R. A. 602 ; Haley v. State, 
42 Neb. 556, 60 N. W. 962, 47 Am. St. Rep. 
718; State v. Chapman, 1 S. D. 414, 47 N. W. 
411, 10 L. R. A. 432; Smith v. State, 54 
Ark. 248, 15 S. W. 882. The case of Austin 
V. Tennessee, 179 XJ. S. 343, 21 Sup. Ct. 132, 
45 L. Ed. 224, affirmed Blaufleld v. State, 103 
Tenn. 593, 53 S. W. 1090, on the point stated 
supn, but disagreed with the decision of the 
Tennessee court that cigarettes are not legit- 
imate objects of commerce and their sale in 
original packages Is not protected by the 
commerce clause; on this point it was also 
held contra in State v. Lowry, 166 Ind. 372, 
77 N. E. 728, 4 L. R. A. (N. S.) 528, 9 Ann. 
Cas. 350. 

Where the goods are in bottles, or small 
packages contained in boxes or crates, the 
bottles were held to be the original packages 
in Com. v. Bishman, 138 Pa. 642, 21 Atl. 12; 
State V. Coonan, 82 la. 4m, 48 N. W. 921 
(sealed bottles in open barrels and boxes) ; 
State V. Miller, 86 la. 638, 53 N. W. 330 (the 
same; in both eases the act was prior to 
Aug. 14, 1890, date of Wilson Act) ; and the 
small packages in Ke May, 82 Fed. 422; 



ORIGINAL PACKAGE 



2430 



ORIGINAL PACKAGE 



Sawrie V. Tennessee, 82 Fed. 615 (all cases 
applying to cigarettes in small boxes) ; but 
the cases generally hold that the box is the 
original package; Guckenneimer v. Sellers, 
81 Fed. 997 ; Smith v. btate, 54 Ark. 248, 15 
S. W. 882 (bottles of liquor in open and 
closed boxes); Haley v. State, 42 Neb. 556, 
60 N. W. 9G2, 47 Am. St. Rep. 718 (small 
bottles of liquor in closed boxes) ; State v. 
Chapman, 1 S. D. 414, 47 N. W. 411, 10 L. R. 
A. 432 (open box) ; In re Harmon, 43 Fed. 
372; May v. New Orleans, 51 La. Ann. 1064, 
25 South. 959 (small packages in packing 
boxes, box furnished by carrier and to be 
returned) ; State v. Parsons, 124 Mo. 436, 
27 S. W. 1102, 46 Am. St. Rep. 457 (medi- 
cine) ; McGregor v. Cone, 104 la. 465, 73 N. 
W. 1041, 39 L. R. A. 484, 65 Am. St. Rep. 522 
(cigarettes). In the case of patent medi- 
cines, it is the small individual package. or 
bottle and not the box in which they are 
packed; Kentucky Board of Pharmacy v. 
Cassidy, 115 Ky. 690, 74 S. W. 730, 25 Ky. 
L. Rep. 102. There is said to be no differ- 
ence whether the box be covered or uncover- 
ed; Keith V. State, 91 Ala. 2, 8 South. 353, 
10 L. R. A. 480 (supra) ; and if the ship- 
ment is in bottles, its character is not chang- 
ed by the carrier's putting it in a box or 
boxes for his own accommodation ; Tinker v. 
State, 96 Ala. 115, 11 South. 383. The fact 
that the box was owned by the carrier is im- 
material ; Austin v. State, 101 Tenn. 563, 48 
S. W. 305, 50 L. R. A. 478, 70 Am. St. Rep. 
703; id., 179 U. S. 343, 21 Sup. Ct. 132, 45 L. 
Ed. 224, where packages of cigarettes were 
shipped In open baskets, the latter held 
the original package. A ten pound package 
of oleomargarine, made and packed in one 
state and sent into another, is ah original 
package, and the importer may sell it per- 
sonally or by an agent directly to the con- 
sumer. The protection of the commerce 
clause does not depend on whether the pack- 
age is suitable for retail trade or not ; Schol- 
lenberger v. Pennsylvania, 171 U. S. 1, 18 
Sup. Ct. 757, 43 L. Ed. 49, reversing Com. v. 
Paul, 170 Pa. 284, 33 Atl. 82, 30 L. R. A. 396, 
50 Am. St. Rep. 776. The right to import a 
lawful article of commerce from another 
state continues until the sale in the original 
package; SchoUenberger v. Pennsylvania, 
171 U. S. 1, 23, 18 Sup. Ct. 757, 43 L. Ed. 49. 
The interstate commerce protection ceases 
when the package is opened, and separate 
packages removed before sale; May v. New 
Orleans, 178 U. S. 496, 20 Sup. Ct. 976, 44 
L. Ed. 1165; People v. Roberts, 158 N. T. 162, 
52 N. E. 1102; In re "Wilson, 8 Mackey (D. 
C.) 341, 12 L. R. A. 624; In re Pringle, 67 
Kan. 364, 72 Pac. 864 ; Kimmell v. State, 104 
Tenn. 184, 56 S. W. 854; Com. v. Paul, 148 
Pa. 559, 24 Atl. 78; State v. Parsons, 124 
Mo. 436, 27- S. W. 1102, 46 Am. St. Rep. 457; 
Hopkins V. Lewis, 84 la. 690, 51 N. W. 255, 
15 L. R. A. 397, where it was held that liquor 
sold over a bar from a bottle handed to a 



customer, with a glass to help himself, was 
not a sale in the original package ; it was a 
sale of the contents of the original packages 
and not the packages themselves. But in 
another case, where^ before the date of the 
Wilson Act, beer In sealed bottles packed in 
boxes was sent into the state, consigned to 
an agent, who removed the bottles from the 
box, furnished corkscrew and tumbler, and 
allowed the customer to help himself, the 
sale was held to be in the original package; 
State V. Miller, 86 la. 638, 53 N. W. 330. 
A sale of the package for ten days' trial and 
the privilege of return if not satisfactory, 
destroys its "original" character ; Wasser- 
boehr v. Bouller, 84 Me. 165, 24 Atl. 808, 30 
Am. St. Rep. 344. 

The rule that the protection is ended by 
breaking does not apply where It Is merely 
for the purpose of inspection by the pur- 
chaser; Greek-American Sponge Co. v. Drug 
Co., 124 Wis. 469, 102 N. W. 888, 109 Am. St. 
Rep. 961; In re McAllister, 51 Fed. 282; 
Wind V. Her, 93 la. 316, 61 N. W. 1001, 27 L. 
1^. A. 219. 

Goods brought in original packages from 
another state after they have arrived at 
their destination and are at rest within the 
state may be tared without discrimination 
like other property within the stated al- 
though stored for distribution and delivery 
in the same packages to purchasers in vari- 
ous states; American S. &amp; W. Co. v. Speed, 
192 U. S. 500, 24 Sup. Ct. 365, 48 L. Ed. 538; 
Woodruff V. Parham, 8 Wall. (U. S.) 123, 19 
L. Ed. 382 ; Leisy v. Hardin, 135 TJ. S. 100, 
10 Sup. Ct. 681, 34 L. Ed. 128; which was 
followed. and applied In Merchants' Transfer 
Co. V. Board of Review, 128 la. 732, 105 N. 
W. 211, 2 L. R. A. (N. S.) 662, 5 Ann. Cas. 
1016. It Is otherwise as to Imports. See 
that title. 

A state tax on all sales of goods brought 
from another state Is valid; Woodruff v. 
Parham, 8 Wall. (U. S.) 123, 19 L. Ed. 382; 
otherwise as to imports of foreign goods; 
Cook V. Pennsylvania, 97 U. S. 566, 24 L. 
Ed. 1015. So a general state tax laid upon 
,all property may Include commodities re- 
ceived from another state and held for sale; 
Brown v. Houston, 114 U. S. 622, 5 Sup. a. 
1091, 29 L. Ed. 257. Credits or bUls re- 
ceivable, the proceeds of sale of imported 
goods In original packages, are taxable by 
the state as Invested capital; People v. 
Wells, 208 U. S. 14, 28 Sup. Ct. 193, 52 L 
Ed. 370, affirming 184 N. Y. 275, 77 N. B. 
10, 12 L. R. A. (N. S.) 905, 121 Am. St Rep. 
840. 

State regulations as to labels (stating con- 
tents) as applied to original packages do 
not Interfere with Interstate commerce as to 
contents; McDermott v. State, 143 Wis. 18, 
126 N. W. 888, 21 Ann. Cas. 1315; or weight; 
In re Agnew, 89 Neb. 306, 131 N. W. 817, 35 
L. R. A. (N. S.) 836, Ann.. Cas. 1912C, 676; 
otherwise, as to protecting domestic manu- 



ORIGINAL PACKAGE 



2431 



ORIGINAL PACKAGE 



facturers against lawful competition In other 
states by discriminating regulations ; as by re- 
quiring the marking of convict-made goods 
brought into the state; Opinion of Justices, 
211 Mass. 605, 98 N. E. 334, Ann. Cas. 1913B, 
815. 

The use of the words "original package" 
in a state statute forbidding the sale of 
black powder except in original sealed pack- 
ages of a certain weight, does not prohibit 
the importation from other states of pack- 
ages of other weights; Williams v. Walsh, 
222 U. S. 415, 32 Sup. Ct. 137, 56 L. Ed. 253 ; 
but the state may forbid the sale of it ex- 
cept in original packages; In re Williams, 79 
Kan. 212, 98 Pac. 777. 

Congress may lawfully provide for the con- 
fiscation of adulterated food, by a proceeding 
m rem in federal courts, while in the hands 
of consignees in unbroken packages; Hipo- 
Ute Egg Co. V. U. S., 220 U. S. 45, 31 Sup. 
Ot 364, 55 L. Ed. 364. 

As to the correct use of the word "im- 
ports" as meaning only goods brought from a 
foreign country and not from another state, 
see IMPOETS. 

The power to regulate or forbid the sale 
ot a commodity after it has been brought 
into a state does not carry with it the right 
and power to prevent its introduction by 
transportation from another state-; Bowman 
IV. E. Co., 125 U. S. 465, 8 Sup. Ct. 689, 1062, 
31 L. Ed. 700. This was followed by.Leisy v. 
Hardin, 135 U, S. 100, 10 Sup. Ct 681, 34 
L. Ed. 128, where it was held (three judges 
dissenting), that a state statute prohibiting 
the sale of intoxicating liquors, except for 
medicinal, etc., purposes, and under a li- 
cense, is, as applied to a sale by an importer 
and in the original packages or kegs un- 
broken and unopened, of such liquor brought 
from another state, unconstitutional and 
void . as repugnant to the commerce clause 
of the constitution. See 4 Harv. L. Rev. 221, 
for a criticism of this case. The rule estab- 
lished in Leisy v. Hardin, does not justify 
the contention that a state is powerless to 
prevent the sale of foods made in or brought 
from another state, if their sale may cheat 
the people into buying something they do not 
intend to buy, and which is wholly different 
from what its condition and appearance im- 
port; Plumley v. Massachusetts, 155 U. S. 
461, 15 Sup. Ct. 154, 29 L. Ed. 223, upholding 
the Massachusetts Oleomargarine Act. 

Subsequently the passage of the Wilson 
Act secured the right of state regulation aft- 
er the breaking or sale of the original pack- 
age See supra and also Liquob, where that 
act is treated. 

A state may regulate or prohibit the sale 
of liquor even in the original paCkage ; Vance 
v. Vandercook Co., 170 U. S. 438, 18 Sup. 
Ct 674, 42 L. Ed. 1100 ; but It cannot impose 
a penalty on a carrier for transporting such 
goods within the state and before their de- 



livery; Rhodes v. Iowa, 170 IT. S. 412, 18 
Sup. Ct. 664, 42 L. Ed. 1088. 
See Commeece; Liqtiob Laws; Ou»mab- 

GABINE. 

ORIGINAL PROCESS. Process to compel 
an appearance by the defendant 

ORIGINAL WRIT. In English Practice. 

A mandatory letter issued in the king's 
name, sealed with his great seal, and direct- 
ed to the sheriff of the county wherein the 
Injury was committed or supposed to have 
been done, requiring him to command the 
wrongdoer, or party accused, either to do 
justice to the complainant, or else to appear 
in court and answer the accusation against 
him. This writ is deemed necessary to give 
the courts of law jurisdiction. Andr. Steph. 
PI. 62; Gould, PL 14. 

This writ is now disused, the writ of sum- 
mons being the process prescribed by the 
Uniformity of Process Act for commencing 
personal actions; and under the Judicature 
Act, 1873, all suits, even in the court of 
chancery, are to be commenced by such 
writs of summons; Brown. But before this, 
in modem English practice, the original 
writ was often dispensed with, by recourse 
to a fiction and a proceeding ty MU substi- 
tuted. In this country, our courts derive 
their jurisdiction from the constitution, and 
require no original writ to confer it. Im- 
properly speaking, the first writ which is is- 
sued in a case is sometimes called an origi- 
nal writ ; but it is not so in the English sense 
of the word. See 3 Bla. Com. 273 ; Walker, 
Am. Law, passim. 

ORIGINALIA (Lat). In English Law. The 

transcripts and other documents sent to the 
office of the treasurer-remembrancer in ex- 
chequer are called by this name to distin- 
guish them from recorda, which contain the 
judgments of the barons. The treasurer-re- 
membrancer's ofllce was abolished in, 1833. 

ORIGINALITY. In Patent Law. The find- 
ing out, the contriving, the creating of some- 
thing which did not exist and was not known 
before, and which can be made useful and 
advantageous in the pursuits of life, or which 
can add to the enjoyment of mankind. Con- 
over V. Roach, 4 Fish. Pat Cas. 16, Fed. Cas. 
No. 3,125. 

ORPHAN. A minor or infant who has 
lost both of his or her parents. Sometimes 
the term is applied to a person who has lost 
only one of bis or her parents. 2 S. &amp; S. 93 ; 
Heiss V. Murphey, 40 Wis. 276. See 14 Haz- 
zard, Penn. Reg. 188, 189, for a correspon- 
dence between Joseph Hopkinson and ex- 
president J. Q. Adams as to the meaning of 
the word orphan; see also. Hob. 247; Jack- 
man V. Nelson, 147 Mass. 300, 17 N. E. 529. 

ORPHANAGE. The share reserved to an 
orphan by the custom vt London. See I-.E01- 
TiME ; Dead's Pabt. 



ORPHANOTROPHI 



2432 



OUSTER 



ORPHANOTROPHI. In Civil Law. Per- 
sons who have the charge of administering 
the affairs of houses destined for the use of 
orphans. Clef des Lois Bom. Administror 
teurs. 

ORPHANS' COURT. Courts of more or 
less extended jurisdiction, relating to pro- 
bate, estates of decedents, etc., in Delaware, 
Maryland, New Jersey, and Pennsylvania. 

OSCULI, JUS. The right to kiss. Accord- 
ing to the old phraseology there could be ho 
marriage within the circle of the jus osovM — 
the seventh degree. Second cousins (sixth 
degree) could not marry. Muirhead, Eom. L. 
26s 

OSTENSIBLE PARTNER. One whose 
name appears in a firm as a partner, and 
who is really such. Pars. Part. 27. See 
Pabtnees. 

OSTEOPATHY. See Physician. 
-' OSWALD'S LAW. The law by which was 
effected the ejection of married priests, and 
the introduction of monks into churches. 
Named from Oswald, Bishop of Worcester, 
about 964. Whart. Lex. 

OTHER CASUALTY. In a lease provid- 
ing that rent shall cease if the premises be- 
come untenantable by fire or other casualty, 
it refers to some fortuitous interruption of 
the use. Crystal ^ Spring Distillery Co. v. 
Cox, 49 Fed. 555, 1 C. 0. A. 365, 6 U. S. 
App. 42. 

OTHER WRONGS. See AtiA Enobmia. 

OTHESWORTHE (Sax. eoth, oath). 
Worthy to make oath. Bract. 185, 192. 

OUGHT. The word is generally directory, 
but may be taken as mandatory if the con- 
text requires it. Bract, fol. 185, 292 6. 

OUSTER (L. Fr. outre, oultre; Lat. ultra, 
beyond). Out; beyond; besides; farther; 
also; over and more. Le ouster, the upper- 
most. Over: respondeat ouster, let him an- 
swer over. Britton, c. 29. Ouster le mer, 
over the sea. Jacob, L. Diet. Ouster eit, he 
went away. 6 Co. 41 6; 9 id. 120. 

To put out; to oust. II oust, he put out 
or ousted, fiustes, ousted. 6 Co. 41 6. 

In Torts. The actual turning out or keep- 
ing excluded the party entitled to possession 
of any real property corporeal. 

It is the wrongful dispossession or exclu- 
sion from real property of a party entitled 
to the possession thereof; ouster of one co- 
tenant by another is produced by the some 
acts as any other ouster; Wlnterburn v. 
Chambers, 91 Oal. 170, 27 Pac. 658. 

An ouster can properly be only from real 
property corporeal, and cannot be commit- 
ted of anything movable; 1 0. &amp; P. 123; 1 
Chitty, Pr. 148; nor is a mere temporary 
trespass considered as an ouster. Any con- 
tinuing act of exclusion from the enjoyment 
constitutes an ouster, even by one tenant in 



common of his co-tenant ; Co. titt. 199 6, 
200 a. See 3 Bla. Com. 167; Webb, Poll. 
Torts 447; 1 Chitty, Pr. 374, where the reme- 
dies for an ouster are pointed out. A de- 
mand- of possession by a tenant In common 
from his co-tenant, and refusal by the latter, 
constitutes an ouster from the joint posses- 
sion; Jordan v. Surghnor, 107 Mo. 520, 17 
S. W. 1009. In an action of quo warranto, 
the judgment rendered. If against an officer 
or individuals, is called judgment of ouster; 
if against a corporation by its corporate 
name, it is ouster and seizure. See Judg- 
ment; Respondeat Ousteb; 2 Crabb, R. P. 
§ 2454 o; Washb. E. P. 

OUSTER LE MAIN (L. Fr. to take out of 
the hand). In Old English Law. A delivery 
of lands out of the hands of the lord after 
the tenant came of age. If the lord refused 
to deliver such lands, the tenant was enti- 
tled to a writ to recover the same from the 
lord: this recovery out of the hands of the 
lord was called ouster le maih. Abolished 
by 12 Car. II. c. 24. Also, a livery of land 
out of the king's hands by judgment given 
in favor of the petitioner in a monstrans de 
droit; 3 Steph. Com. 657. 

OUSTER LE MER. Beyond the sea. A 
cause of excuse, if a person, being summon- 
ed, did not appear in court. Oowell. 

OUT OF COURT. A plaintiff in an ac- 
tion at .common law must have declared 
within one year after the service of the 
summons, otherwise he was out of court un- 
less the court had, by special order, enlarged 
the time for declaring. See Jud. Act. 1875, 
Ord. xxi. r. 1. Whart Lex. 

Also used as a colloquial phrase applied 
to a litigant party when his case breaks 
down, equivalent to saying, "he has not a 
leg to stand on;" Moz. &amp; W. 

OUTOF THE STATE. Beyond sea, which 
title see. 

OUT OF TIME. Generally speaking, a 
ship may be said to be missing or out of time 
when she has not been heard of after the 
longest ordinary time in which the voyage 
is safely performed. 1 Am. Ins., 6th ed. 536 ; 
2 Duer, Ins. 469, n. 

OUTER BAR. See Uttee Baeristee. 

OUTER HOUSE. See Courts of Scot- 
land. 

OUTFANGTHEF. A liberty in the an- 
cient common law, whereby a lord was en- 
abled to call any man dwelling in his manor 
and taken for felony, in another place out of 
his fee, to judgment in his own court Du 
Cange. See Infangthef. 

OUTFIT. An allowance made by the gov- 
ernment of the United States to an ambas- 
sador, a minister plenipotentiary, or charg6 
d'affaires, on going from the United States 
to any foreign country. 



OUTFIT 



2433 



OUTLAW 



The outfit can in no case exceed one year's 
full salary. No outfit is allowed to a consul. 
See Minister. 

As to the meaning of "outfit" in the whal- 
ing business, see Macy v. Ins. Co., 9 Mete. 
(Mass.) 354. 

OUTBUILDING. Something used in con- 
nection with a main building. Com. v. In- 
toxicating Liquors, 140 Mass. 287, 3 N. E, 
4. While a stable may be a necessary out- 
building, yet when erected for use in connec- 
tion with a tent placed temporarily on land, 
it is not so, within a restriction against the 
erection of a building other than dwellings 
of a specified value with necessary outbuild- 
ings; Blakemore v. Stanley, 159 Mass. 6. 
33 N. E. 689. See Outhouses. 

OUTHOUSES. Buildings adjoining or be- 
longing to dwelling-houses. 

Buildings subservient to, yet distinct from, 
the principal mansion-house, located either 
within or without the curtilage. State v. 
Brooks, 4 Conn. 446; Jones v. Hungerford, 
4 Gill &amp; J. (Md.) 402; 2 Cr. &amp; D. 479. 

It is not easy to say what comes within 
and what is excluded from the meaning of 
outhouse. It has been decided that a school- 
room, separated from the dwelling-house by 
a narrow passage about a yard wide, the 
roof of which was partly upheld by that of 
the dwelling-house (the two buildings, to- 
gether with some other, and the court which 
Inclosed them, being rented by the same per- 
son), was properly described as an outhouse; 
Russ. &amp; R. Cr. Cas. 295. See, for other cases, 
Co. 3d Inst. 67 ; 1 Leach 49 ; 2 East PL Cr. 
1020 ; 5 C. &amp; P. 555 ; 8 B. &amp; C. 461 ; 1 Mood. 
Cr. Cas. 323, 336; State v. Brooks, 4 Conn. 
446; Swallow v. State, 20 Ala. 30; White v. 
Com., 87 Ky. 454, 9 S. W. 303 ; Price v. Com. 
(Ky.) 25 S. W. 1062. 

OUTLAND. Land lying beyond the de- 
mesnes and granted out to tenants at the 
will of the lord, like copyholds. Spelman. 

OUTLAW. In English Law. One who is 

put out of the protection or aid of the law. 
22 Viner, Abr. 316; 1 Phill. Ev. Index; 
Bacon Abr. Outlawry; 2 Sell. Pr. 277 ; Doctr. 
Plac. 331; 3 Bla. Com. 283, 284. 

As used in the Alabama act of December 
28, 1868, § 1, declaring counties liable for 
persons killed by an "outlaw," it is not 
used in the strict common-law sense of the 
term, but merely refers in a loose sense to 
the disorderly jyersons then roving through 
the state, committing acts of violence ; Dale 
Co. V. Gunter, 46 Ala. 118, 187. See Drew 
V. Drew, 37 Me. 389. 

If a party, after indictment, could not be 
found, the first process against htm was a 
capias, in cases of treason or felony, or in 
misdemeanors, a venire facias, and then a 
capias. Following this is an alias and then 
a pluries writ. After this the offender is put 
in the "exigent" and is proclaimed four times 
Bouv.— 153 



in four successive county courts. Upon the 
fifth, he is adjudged an outlaw. It is said 
that no man may kill an outlaw wilfully, but 
only in an effort to arrest him. A judgment 
of outlawry was a grave matter ; it involved, 
not merely escheat and forfeiture, but a 
sentence of death. If the outlaw was cap- 
tured, the justices sent him to the gallows 
upon proof of the mere fact of outlawry. 
There were all manner of cases in which a 
man might be outlawed without being guilty 
of any crime or any intentional contumacy. 
The exaction might take place in a county 
distant from his home. There was therefore 
great need for royal writs for inlawing an 
outlaw and many were issued. 2 Poll. &amp; 
Maitl. 581. Outlawry for a misdemeanor 
does not amount to a conviction for the of- 
fense itself. 4 Steph. Com. 317. The "minor 
outlawry" for "trespasses" did not involve 
sentence of death ; otherwise of the higher 
crimes. 2 PoU. &amp; Maitl. 581. See Exigent. 

It is still possible in England for a per- 
son accused of a criminal charge to be made 
an "outlaw"; Odgers, C. L. 1418; in civil 
actions it is abolished (1879) ; 4 Steph. Com. 
317. 

When used with reference to a claim, as, 
a debt due on a promissory note, "outlawed" 
means barred by the statute of limitations; 
Drew V. Drew, 37 Me. 392. 

OUTLAWRY. In English Law. The act of 

being put out of the protection Of the law, 
by process regularly sued out against a per- 
son who is in contempt in refusing to be- 
come amenable to the court having jurisdic- 
tion. The proceedings themselves are also 
called the outlawry. 

Outlawry may take place in criminal or 
in civil cases; 3 Bla. Com. 283; Co. Litt. 
128. 

In the United States, outlawry in civil 
cases is unknown, and if there are any cases 
of outlawry in criminal cases they are very 
rare ; Dane, Abr. ch. 193 a, 34. 

OUT FARTERS. Stealers of cattle. Cow- 
ell. 

. OUTPUTERS, Such as set watches for 
the robbing any manor house. Cowell. 

OUTRAGE. A grave injury; a serious 
wrong. This is a generic word which is ap- 
plied to everything which is injurious in a 
great degree to the honor or rights of an- 
other. McKinley v. R. Co., 44 la. 314, 24 
Am. Rep. 748. 

OUTRIDERS. In English Practice. Bail- 
iffs employed by the sheriffs and their depu- 
ties to ride to the farthest places of their 
counties or hundreds, to summon such as 
they thought good to attend their county or 
hundred court. Jacob. 

OUTROPER. A person to whom the busi- 
ness of selUng by auction was confined by 
statute. 2 H. Bla. 557. 



OUTSTANDING 



2434 



OVERDRAW 



OUTSTANDING. Unpaid; uncollected; 
remaining undischarged. 

OUTSTANDING CROP. One not harvest- 
ed or gathered. It is outstanding from the 
day it commences to grow until gathered and 
taken away. SuUins v. State, 53 Ala. 474. 

OUTSTANDING DEBT. Due but not 

paid; overdue; uncollected, as an outstand- 
ing draft, bond, premium, or other demand 
or indebtedness. 

OUTSTANDING TERM. A term in gross 
at law, which, in equity, may be made at- 
tendant upon the inheritance, either by ex- 
press declaration or by implication. 

OUTSUCKEN MULTURES. Quantities of 
com paid by persons voluntarily grinding 
corn at any mill to which they are not 
thirled or bound by tenure. Jacob. 

OUVERTURE DES SUCCESSIONS. In 
French Law. The right of succession which 
arises to one upon the death, whether nat- 
ural or civil, of another. Brown. 

OVERCYTED; OVERCHYSED. Proved 
guilty or convicted. Blount. 

OVERDRAFT. See Ovekdbaw. 

OVERDRAW. To draw bills or checks 
upon an individual, bank, or other corpora- 
tion, for a greater amount of funds than 
the party who draws is entitled to. See 
State V. Jackson, 21 S. D. 494, 113 N. W. 
880, 16 Ann. Cas. 87. 

When a person has overdrawn his ac- 
count without any intention to do so, and 
afterwards gives a check on a bank, the 
holder is required to present it, and on re- 
fusal of payment to give notice to the maker, 
in order to hold him bound for it; but when 
the maker has overdrawn the bank knowing- 
ly, having no funds there between the time 
the check is given and its presentment, the 
notice is not requisite ; Edwards v. Moses, 2 
N. &amp; McO. (S. C.) 433, 10 Am. Dec. 615; 
True v. Thomas, 16 Me. 36. A bank may 
properly refuse to pay a check which will 
overdraw the depositor's account, though 
on the bank books his balance seems to be 
larger than the amount of the check, be- 
cause a check of his, paid by the bank two 
days before, had not yet been charged to 
such depositor; American Exch. N. Bk. v. 
Gregg, 138 111. 596, 28 N. E. 839, 32 Am. St. 
Eep. 171. The president of a bank who di- 
rects the payment of checks of a customer 
who has no money in the bank, drawn in 
payment of property purchased by the cus- 
tomer, has no such interest in the property 
as will support an action by him for its con- 
' version; Kollock v. Emmert, 43 Mo. App. 
566. 

An overdraft on a bank is in the nature 
of a loan; it is considered a fraud on the 
part of the depositor; 'Peterson v. Bank, 52 
Pa. 206, 91 Ani. Dec. 146. See Merchants' 



Bank v. Bank, 1.0 Wall. (U. S.) 647, 19 L. 
Ed. 1008. Indebitatus assumpsit will lie 
against the depositor to recover the over- 
draft; Bank of U. S. v. Macalester, 9 Pa. 
475; Thomas v. Bank, 46 111. App. 461. 

A cashier who knowingly permits an over- 
draft is guilty of a breach of trust, and 
liable to an action to make good the amount, 
even though the directors had been wont to 
countenance him in a custom of allowing 
good depositors to overdraw; Morse, Bank., 
3d ed. § 357. 

If an overdraft on a national bank is 
properly made and allowed, or even if im- 
properly allowed, the entry of the transac- 
tion on the books of the bank just as it oc- 
curred is not a false entry, under R, S. § 
5209; Dow v. U.' S., 82 Fed. 904, 27 0. C. A. 
140. The mere payment of a check which 
creates an overdraft is not a fraudulent mis- 
application of the funds; 'id.; and where a 
national bank officer arranges with a de- 
positor in good faith to give him credit be- 
yond his deposit and makes proper entries 
of his overdrafts, it is not a false entry un- 
der R. S. § 5209 ; Graves v. U. S., 165 U. S. 
323, 17 Sup. Cft. 393, 41 L. Ed. 732. But 
where the president of a bank, not acting in 
good faith, permitted overdrafts which he 
did not believe and had no reasonable 
ground to believe would be repaid, and it 
appeared that he intended by the transaction 
to injure and defraud the bank, the act be- 
comes a crime; poffin v. U. S., 162 U. S. 664, 
16 Sup. Ct. 943, 40 L. Ed. 1109. 

It is not an overdraft, if the bank owes 
the depositor more money than is standing 
to his credit; Hubbard v. Pettey, 37 Tex. 
Civ. App. 453, 85 S. W. 509, affirmed with- 
out opinion 101 Tex. 643. 

A bank may refuse to pay a check if it 
overdraws ; Spokane &amp; E. T. Co. v. HufC, 63 
Wash. 225, 115 Pac. 80, 33 L. R. A. (N. S.) 
1023, Ann. Cas. 1912D, 491. One who has 
been i)ermitted to overdraw in the past ac- 
quires no right to do so; St. Louis &amp; S. F. 
R. Co. V. Johnston, 133 U. S. 566, 574, 10 
Sup. Ct. 390, 33 L. Ed. 683. It is not re- 
quired to pay a check which overdraws ; but 
if it pays out the credit balance on such 
check it may take up the check as evidence 
of such payment; Harrington v. Bank, 85 
111. App. 212. The holder of a check which 
overdraws has no right to the actual balance 
unless the bank agrees to pay it; Dana v. 
Bank, 13 Allen (Mass.) 445, 90 Am. Dec. 
216. 

OVERDUE, A bill, note, bond, or other 
contract for the payment of money at a par- 
ticular day, when not paid upon the day, is 
overdue. 

The indorsement of a note or bill overdue 
is equivalent to drawing a new bill payable 
at sight; Bishop v. Dexter, 2 Conn. 419; 
Colt V. Barnard, 18 Pick. (Mass.) 260, 29 
Am. Dec. 584. 



OVERDUE 



2435 



OVERISSUE 



A note when passed or assigned after It is 
overdue, is subject to all the equities be- 
tween the original contracting parties; Nev- 
ins V. Townsend, 6 Conn. 5 ; Cumberland Bk. 
V. Plann, 18 N. J. L. 222; Byles, Bills 190. 

The transferor's legal title passes and 
maturity acts as notice of such equities ; see 
Fisher v. Leland, 4 Gush. (Mass.) 456, 50 
Am. Dec. 805. The creation of a better title 
than that of the transferor is prevented; 4 
B. &amp; C. 330 ; Northampton N. Bk. v. Kidder, 
106 N. Y. 221, 12 N. B. 577, 60 Am. Kep. 443; 
where five out of nine successively maturing 
notes were transferred after their maturity, 
it was held that a counterclaim for breach 
of warranty by the payee could be set up 
against them all; Kowe v. Scott, 28 S. D. 
145, 132 N. W. 695. 

OVERHAUL. To inquire into. The mer- 
its of a judgment can never be overhauled 
by an original suit. 2 H. Bla. 414. 

OVER-INSURANCE. See Double Insub- 

ANCE. 

OVERISSUE. Bonds. Where there is an 
agreement that a railroad company shall is- 
sue only a fixed number of bonds per mile, 
bonds issued in excess of the limit vrtll be 
postponed in lien and payment to those with- 
in the Umit; McMurray v. Moran, 134 U. S. 
159, 10 Sup. Ct. 427, 33 L. Ed. 814 ; and one 
who buys bonds within the limit upon the 
faith of this agreement is fully entitled to 
the benefit of it; id.; where bonds are is- 
sued, secured by a mortgage which recites 
the amount of the bonds and that part of 
them were to be used to take up bonds of a 
prior issue, the lien of the mortgage will 
be confined to an amount of bonds which, 
added to the specified incumbrances, shall 
not exceed the limit fixed ; Olaflin v. B. Co., 
8 Fed. 118; where the question was raised 
by subsequent bondholders. 

Where an issue of railroad bonds was 
limited in amount, and the governor of a 
state indorsed on them' a recital that they 
were issued in pursuance of law, It was 
held that a bona fide purchaser was not 
bound to look beyond his certificate and that 
the bonds so certified in excess of the author- 
ized issue were entitled to share pro rata 
with the other bonds; Stanton v. K. Co., 2 
Woods 523, Fed. Cas. No. 13,297. Bonds are 
numbered for mere convenience, and holders 
of those of a higher number stand on the 
same footing, In a distribution of a fund, as 
those of lower numbers ; id. 

Where a mortgage was given to secure a 
specified issue of bonds and by mistake a 
larger number were issued and the excess 
came into the hands of a iona fide holder, 
there being nothing to put him on inquiry, 
the company was held estopped to set up 
that they were not secured by the mortgage, 
and it was held that the excess bonds had 
a prior lien as against Income bonds not se- 



cured by a recorded mortgage, but not 
against a subsequent recorded mortgage; 
Stephens v. Benton, 1 Duv. (Ky.) 112. 
Where a statute limited the issue of bonds 
to the amount of the capital stock actually 
paid in, it was held that bonds issued in ex- 
cess of this amount were illegal, and that a 
second mortgage bondholder could take ad- 
vantage of their Illegality, though the com- 
pany itself did not seek to repudiate them ; 
Com. V. Smith, 10 Allen (Mass.) 448, 87 Am. 
Dec. 672 ; but see Peatman v. Power Co., 100 
la. 245, 69 N. W. 541 ; where bonds issued 
in excess were held to be valid to the extent 
of the consideration received for them. 
Where a railroad company was authorized 
to issue bonds to a certain amount in rela- 
tion to the amount of the capital stock, and 
a mortgage was executed for a larger 
amount than was authorized, it was held 
that between iona fide holders of the mort- 
gage bonds and the company, the bonds were 
entitled to the lien of the mortgage, and that 
subsequent creditors with notice of the bonds 
occupied no better position than the com- 
pany ; Fidelity Co. v. R. Co., 138 Pa. 494, 21 
Atl. 21, 21 Am. St. Rep. 911. A constitu- 
tional provision forbidding the fictitious in- 
crease of corporate indebtedness will not be 
enforced where mortgage bonds are sold at 
par to innocent purchasers, for construction 
and equipment; id. 

Stoolo. Any issue of stock of a corpora- 
tion in excess of that authorized by statute 
or charter is void; New York &amp; N. H. R. Co. 
V. Schuyler,, 34 N. Y. 30; even in the hands 
of a tona fide purchaser; People's Bank v. 
Kurtz, 99 Pa. 344, 44 Am. Rep. 112 ; Appeal 
of Mount Holly Paper Co., 99 Pa. 513. A 
Bona fide holder of overissued stock, pur- 
porting to be signed by an authorized cor- 
porate officer, and actually issued by the 
corporation, may sue the corporation in tort 
and recover damages; New York &amp; N. H. 
R. Co. V. Schuyler, 34 N. Y. 30 (the leading 
case); Appeal of Mt Holly Paper Co., 
99 Pa. 513; Bank of Kentucky v. Bank, 1 
Pars. Eq. Cas. (Pa.) 180, 216; the doctrine 
of estoppel applying; Kisterbock's Appeal, 
127 Pa. 6.01, 18 Atl. 388, 14 Am. St. Rep. 868; 
and the same rule applies where the over- 
Issued stock is held as collateral for notes; 
Appeal of Mt. Holly Paper Co., 99 Pa. 513 ; 
not so, as to a purchaser not in good faith 
for full value; Ryder v. R. Co., 134 N. Y. 
83, 31 N. E. 251; although the signature of 
one corporate officer had been forged by an- 
other ; Fifth Ave. Bank v. R. Co., 137 N. Y. 
231, 33 N. B. 378, 19 L. R. A. 831, 33 Am. 
St. Rep. 712. 

If statutory or charter provisions author- 
ize an increase of the capital stock, but the 
formalities prescribed for making the in- 
crease are not complied with, it is termed 
an irregular issue, and Is voidable; Scovill 
T. Thayer, 105 U. S. 143, 26 L. Ed. 968. 



OYERISSUK 



2436 



OVERREACHING CLAUSE 



The authorized corporate officers and the 
corporation are jointly and severally liable 
to immediate or subsequent purchasers (buy- 
ing upon the faith of certificates) of an over- 
issue or irregular issue of stock, who have 
sustained damage thereby; Bruff v. Mali, 36 
N. Y. 200; Windram v. French, 151 Mass. 547, 
24 N, E. 914, 8 L. R. A. 750. 

Equity will enjoin the transfer of spu- 
rious stock, the payment of dividends there- 
on, or the voting thereof by the pretended 
owners; Kent v. Min. Co., 78 N. Y, 159. 
Such stock is a cloud upon the title of the 
genuine stock, which a court of equity will 
remove at the suit of the corporation or the 
stockholders; Dewing v. Perdicaries, 96 V. 
S. 193, 24 L. Ed. 654; and the holder thereof 
who knew it to be, overissued, at the time 
of the subscription, can defeat an action at 
law on his subscription therefor; Scovill v. 
Thayer, 105 U. S. 143, 26 L. Ed. 968 ; or an 
action upon a promissory note given there- 
for; Merrill v. Reaver, 50 la. 404. 

Failure by a holder of valid stock for six 
years to complain of an overissue of stock is 
laches; Jutte v. Hutchinson, 189 Pa. 218, 
42 Atl. 123. 

Whatever might be the rule as to a bona 
fide purchaser of or subscriber for an over- 
issue of shares of stock in a corporation, one 
who procures the overissue without consider- 
ation by false , representations will not be 
heard to assert that a stockholder who voted 
therefor relying on such representations is 
estopped to question the validity of the 
shares ; Haskell v. Read, 68 Neb. 107, 93 N. 
W. 997, 96 N. W. 1007. 

OVERPLUS. What is left beyond a cer- 
tain amount; the residue ; the remainder of 
a thing. The same as surplus. 

The overplus may be certain or uncertain. 
It is certain, for example, when an estate 
Is worth three thousand dollars, and the 
owner asserts it to be so in his will, and 
devises of the proceeds one thousand dol- 
lars to A, one thousand dollars to B, and 
the overplus to C, and in consequence of the 
deterioration of the estate, or from some 
other cause, it sells for less than three thou- 
sand dollars, each of the legatees. A, B, and 
0, shall take one-third. The overplus is un- 
certain where, for example, a testator does 
not know the value of his estate and gives 
various legacies, and the overplus to another 
legatee : the latter will be entitled only to 
what may be left ; 18 Ves. 466. See Residtje ; 

SUKPLTJS. 

OVERRATE. In its strictest signification, 
a rating by way of excess and not one which 
ought not to have been made at all. 2 Ex. 
352. 

OVERREACHING CLAUSE. In a reset- 
tlement, a clause which saves the powers of 
sale and leasing annexed to the estate for 
life created by the original settlement, when 



it is desired to give the tenant for life the 
same estate and powers under the resettle- 
ment, 

OVERRULE. To annul; to make void. 

This word is frequently used to signify 
that a case has been decided directly oppo- 
site to a former case ; when this takes place, 
the first-decided case is said to be overruled 
as a precedent, and cannot any longer be 
considered as of binding authority. 

It also signifies that a majority of the 
judges of a court having decided against the 
opinion of the minority, in which case the 
latter are said to be overruled. 

See Pbbcbdbnts. 

VERSA MESSA. A forfeiture for con- 
tempt or neglect in not pursuing a male- 
factor. 3 Inst. 116. 

OVERSEERS OF HIGHWAYS. Officers 
having supervision of highways In some of 
the states. See Commissionees of High- 
ways. 

OVERSEERS OF THE POOR. Persons 
appointed or elected to take care of the poor 
with moneys furnished to them by the pub- 
lic authority. 

The duties of these officers are regulated 
by local statutes. In general, the overseers 
are bound to perform those duties, and the 
neglect of them will subject them to an in- 
dictment. See 1 Bla. Com. 360; 16 Vlner, 
Abr. 150; Freeport v. Bdgecumbe, 1 Mass. 
459; Gould v. BaUley, 2 N. J. L. 6; Shotwell 
V. Thornall, id. 136; Com. Dig. Justice of 
the Peace (B 63). 

OVERT. Open. 

An overt act in treason is proof of the In- 
tention of the traitor, because it opens his 
designs: without an overt act, treason can- 
not be committed; 2 Ohitty, Cr. Law 40. An 
overt act is one which manifests the inten- 
tion of the traitor to commit treason ; Archb. 
Or. PI. 379; 4 Bla. Com. 79; Co. 3d Inst. 12; 
Respublica v. Malln, 1 Dall. (U. S.) 33, 1 
L. Ed. 25; U. S. v. Vigol, 2 Dall. (U. S.) 
346, 1 L. Ed. 409; Re BoUman, 4 Cra. C^. 
S.) 75, 2 L. Ed. 554; U. S. v. Pryor, 3 Wash. 
C. O. 234, Fed. Cas. No. 16,096. In order to 
sustain a conviction for treason under the 
U. S. constitution, there must be the testi- 
mony of two witnesses to the same overt act 
or a confession in open court. A conspira- 
tor can be tried In any place where his co- 
conspirators perform an overt act; R. S. § 
440. The phrase Is used m relation to the 
Fugitive Slave Act In Jones v. Van Zandt, 
5 How. (U. S.) 215, 12 L. Ed. 122. 

In conspiracy, no overt act is needed to 
complete the offence; 11 CI. &amp; F. 155; Land- 
ringham v. State, 49 Ind. 186. See U. S. v. 
Goldberg, 7 Blss. 175, Fed. Cas. No. 15,223. 

The mere contemplation or intention to 
commit a crime, although a sin In the sight 
of Heaven, is not an act amenable to human 



OVERT 



2437 



OWNER 



laws. The mere speculative wantonness of 
a licentious imagination, however dangerous 
or even sanguinary in its object, can in no 
case amount to a crime. But the, moment 
that any overt act is manifest, the offender 
becomes amenable to the laws. See Cro. 
Car. 577; Attempt; Conspieact; Soucita- 

TION. 

OWELTY. The difference which Is paid 
or secured by one coparcener or cotenant to 
another for the puijjose of equalizing a par- 
tition. Littleton § 251; Co. Litt. 169 c; Long 
V Long, 1 Watts (Pa.) 265; 16 Viner, Abr. 
223, pi. 3. See Barkley v. Adams, 158 Pa. 
396, 27 Atl. 868; Reed v. Deposit Co., 113 
Pa. 578, 6 Atl. 163. 

A charge on land for owelty of partition 
follows the land into the hands of a pur- 
chaser from the person to whom it was al- 
lotted; and the statute of limitation does 
not run against it, as the possession 'is not 
adverse; Dobbin v. Rex, 106 N. C. 444, 11 
S. B. 260. 

OWING. Something unpaid. A debt, for 
example, is owing while it Is unpaid, and 
whether it be due or not. See Succession of 
Guidry, 40 La. Ann. 671, 4 South. 893. 

In affidavits to hold to bail it is usual to 
state that the debt on which the action is 
founded is due, owing, and unpaid; 1 Pa. 
L. J. 210. 

OWLING. The offence of transporting 
wool or sheep out of the kingdom. The 
name is said to owe its origin to the fact 
that this offence was carried on in the night, 
when the owl was abroad. 

OWNER. He who has dominion of a 
thing, real or personal, corporeal or incor- 
poreal, which he has a right to enjoy and 
do with as he pleases, — even to spoil or de- 
stroy it, as far as the law permits, unless 
he be prevented by some agreement or cove- 
nant which restrains his right. See Turner 
V. Cross, 83 Tex. 218, 18 S. W. 578, 15 L. R. 
A. 262 ; Johnson v. Crookshanks, 21 Or. 339, 
28 Pac. 78. 

Although there can be but one absolute 
owner of a thing, there may be a qualified 
ownership. of the same thing by many. Tl}us, 
a bailor has the general ownership of the 
thing bailed, the bailee the special owner- 
ship. See Park v. Willis, 2 Cra. C. C. 83, 
Fed. Cas. No. 10717. The right of the abso- 
lute owner is more extended than that of 
him who has only a qualified ownership : as, 
for example, the use of the thing. Thus, 
the absolute owner of an estate, that is, an 
owner in fee, may cut the wood, demolish 
the buildings, build new ones, and dig wher- 
ever he may deem proper for minerals, stone, 
plaster, and similar things, which would be 
considered waste and would not be allowed 
in a qualified owner of the estate, as a les- 
see or a tenant for life. The word pawner, 
when used alone, imports an absolute owner; 



but it has been held in Ohio that the word 
owner, in the mechanic's lien law of that 
state, includes the owner of the leasehold as 
well as of the reversion, on the ground that 
any other construction would be subversive 
of the policy and Intent of the statute. Chot- 
eau V. Thompson, 2 Ohio St. 123. 

The owner continues to have the same 
right although he perform no acts of owner- 
ship or be disabled from performing them, 
and although another perform such acts 
without the knowledge or against the will 
of the owner. But the owner may lose his 
right in a thing if he permit it to remain 
in the possession of a third person for a 
sufficient time to enable the latter to acquire 
a title to it by prescription or under the 
statute of limitations. See La. Civ. Code, 
b. 2, tit. 2, c. 1; Enoyelop6die d'Al&amp;mbert, 
Proprietaire. 

When there are several joint owners of 
a thing, — as, for example, of a ship, — the 
majority of them have the right to make con- 
tracts in respect of such thing in the usual 
course of .business or repair, and the like, 
and the minority will be bound by such con- 
tracts ; Holt 586 ; Schott v. Harvey, 105 Pa. 
222, 51 Am. Rep. 201. See Paet-owneb. 

OWNERSHIP. The right by which a 
thing belongs to some one in particular, to 
the exclusion of all others. La. Civ. Code, 
art. 480. 

The entirety of the powers of use and dis- 
posal allowed by law. It implies that there 
is some power of disposal ; but the owner of 
a thing is not necessarily the person who at 
a given time has the whole power of use and 
disposal. Owner is hot strictly a technical 
term In the common law. Pollock, First 
Book of Jurispr. 175. Ownership is broader 
than both or possession; Fleming v. Sher- 
wood, 24 N. D. 144, 139 N. W. 101, 43 L. R. 
A. (N. S.) 945. See J. B. Ames on The Na- 
ture of Ownership, in Lect. Leg. Hist. 192. 

OWNER'S RISK. An expression employ- 
ed by carriers with the object of relieving 
them from responsibility. The carrier is 
held not to be liable if he uses ordinary 
diligence; otherwise, if he displays gross 
negligence or malfeasance ; [1906] T. S. 973 
(So. Afr.). 

OX GANG (fr. Sax. gang, going, and ox; 
Law Lat. hovata). So much land as an ox 
could till. In the north of England a divi- 
sion of a carucate. According to some, fif- 
teen acres. Co. Litt. 69 a; Crompton, Jurisd. 
220. According to Balfour, the Scotch oxen- 
gang, or oxgate, contained twelve acres ; but 
this does not correspond with ancient char- 
ters. See Bell, Diet. Ploughgate. Skene 
says thirteen acres. Cowell. See 1 PoU. &amp; 
Maitl. 347. 

OYER (Lat. audire; through L. French 
oyer, to hear). 



OYER 



2438 



OYSTER 



A prayer or petition to the court that the 
party may hear read to him the deed, etc., 
stated in the pleadings of the opposite party, 
and which deed is by intendment of law in 
court when it 19 pleaded with a profert. 
The same end is now generally attained by 
giving a copy of the deed of which oyer is 
asked, or, in other instances, by setting forth 
the instrument in full in the plaintiff's state- 
ment of his case. Oyer as it existed at com- 
mon law seems to be abolished in England ; 1 
B. &amp; P. 646; 3 id. 398; 25 E. L. &amp; B. 304. 
Oyer may be demanded of any specialty or 
other written instrument, as, bonds of all 
sorts, deeds-poll, indentures, letters testa- 
mentary and of administration, and the like, 
which the adverse party is obliged to plead 
with a profert in curia; Gould, PI. 408. BuJ; 
pleading with a profert unnecessarily does 
not give a right to demand oyer; 1 Salk. 
497; and it may not be had except when 
profert is made; Hempst. 265. Denial of 
oyer when it should be granted is ground for 
error; Andr. Steph. PI. 59; Osborne v. Reed, 
1. Blackf. (Ind.) 126. In such cases the par- 
ty making the claim should move the court 
to have it entered on record, which is in 
the nature of a plea, and the plaintiff may 
counterplead the right of oyei", or strike 
out the rest of the pleading following the oy- 
er, and demur ; 1 Saund. 9 6, n. 1 ; Bac. Abr. 
Pleas 1 ; upon which the judgment of the 
court is either that the defendant have oyer, 
or that he answer without it; id.; 2 Lev. 
142 ;, 6 Mod. 28. See Peofebt in Ctteia. 

After craving oyer, the defendant may set 
forth the deed or a part thereof,, or not, at 
his election; 1 Chitty, PI. 372; and may 
afterwards plead non est factum, or any 
other plea, without stating the oyer; 2 Stra. 
1241; 1 Wils. 97; and may demur if a ma- 
terial variance appear between the oyer and 
declaration; 2 Saund. 366, n. 

See, generally, Com. Dig. Pleader (P), 
Abatement (I 22) ; 3 Bouvier, Inst. n. 2890. 

OYER AND TERMINER. See Assize; 

OOUBT OF OyEE and TeKMINEE. 

OYEZ (Fr. hear ye). The introduction to 
any proclamation or advertisement by public 
crier. Used also by court officers in opening 
court. It is wrongly and usually pronounced 
oh yes. 4 Bla. Com. 340, n. 

OYSTER. The right to take shell fish be- 
low high water mark from natural beds in 
tide waters is common to all citizens of the 
state, except as restrained by positive law 
or grants from the state ; Brown v. De Groff, 
50 N. J. L. 409, 14 Atl. 219, 7 Am. St Rep. 
794 ; Allen v. Allen, 19 R. I. 114, 32 Atl. 166, 
30 L. R. A. 497, 61 Am. St. Rep. 738 ; Cook 
V. Raymond, 66 Conn. 285, 33 Atl. 1006. "A 
natural oyster-bed" is one not planted by 
man ; State v. Willis, 104 N. 0. 764, 10 S. E. 
764. There is a right of property in artifi- 
cial oyster beds planted in public or naviga- 



ble waters. In spots designated by stakes or 
otherwise; State v. Taylor, 27 N. J. L. 117, 
72 Am. Dec. 347; McCarty v. Holman, 22 
Hun- (N. y.) 53; the owner must, clearly 
mark out and define his beds; Brinckerhoff 
V. Starklns, 11 Barb. (N. Y.) 248; this right 
is in the nature of a license from the state, 
which the state may revoke; Fleet v. Hege- 
man, 14 Wend. (N. t.) 42 ; Hess v. Muir, 65 
Md. 586, 5 Atl. 540, 6 Atl. 673. 

A state has power to .regulate the oyster 
industry although carried on under its tidal 
waters; Lee v. New Jersey, 207 U. S. 67, 28 
Sup. Ot. 22, 52 L. Ed. 106. It may forbid the 
lease of oyster beds lying under certain tidal 
waters within the state to any person not 
a citizen and resident of such state unless 
he was using such bed at the time of the 
passage of the act, the right to cultivate and 
plant .oysters not being a privilege or im- 
munity, but a property right; State v. Cor- 
son, 67 N. J. L. 178, 50 Atl. 780; but it was 
held that an act making it a misdemeanor 
for one not a citizen of the United States 
and a resident and tax payer of the state to 
take oysters was invalid as In violation of 
the Texas bill of rights ; Gustafson v. State, 
40 Tex. Cr. K. 67, 45 S. W. 717, 48 S. W. 
518, 43 L. R. A. 615. 

An act requiring everyone engaged in 
packing oysters to pay a tax, which applies 
to oysters taken in and shipped from another 
state, is within the police power of the state. 
It is not an interference vnth interstate com- 
merce; Applegarth v. State, 89 Md. 140, 42 
Atl. 941. Deepening the channel, by which 
oyster beds were injured, is not a taking of 
the oyster beds within the fifth amendment 
of the United States constitution; Lewis B. 
P. O. O. Co. V. Briggs, 229 U. S. 82, 33 Sup. 
Gt 679, 57 L. Ed. 1083. 

The state, subject to the paramount right 
of navigation, is the owner of the oyster- 
beds in its waters and can prohibit their 
taking by any but its own citizens, and pre- 
scribe the times, instruments, and conditions 
of taking them ; Dize v. Lloyd, 36 Fed. 652 ; 
Boggs V. Com., 76 Va. 989. 

One who plants oysters on a natural bed 
cannot recover against one who removes 
them with the natural growth; Cook v. Ray- 
mond, 66 Conn. 285, 33 Atl. 1006. 

One who plants a bed of oysters in a bay 
on an arm of the sea, designating the bed, 
does not Interfere with the common right of 
fishing, and may maintain trespass for an 
invasion of his property ; Robins v. Ackerly, 
91 N. Y. 98; 7 Q. B. D. 106. Oysters deposit- 
ed artificially may obstruct navigation and 
be a nuisance; 7 Q. B. 339. 

An act requiring oyster packers to pay a 
tax is constitutional, though they are ship- 
ped from another state ; Applegarth v. State, 
89 Md. 140, 42 Atl. 941. 

An- act authorizing the state oyster com- 
mission to fix the license tax Imposed on 



OYSTER 



2439 



OYSTER 



boats entitled to engage in oyster planting 
in certain tidal waters within the state ac- 
cording to the tonnage measurement of the 
boats does not violate the constitutional 
prohibition against levying tonnage duties, 
the tax being imposed on the business of 
oyster planting and not on the ship as an in- 
strument of commerce; State v. Corson, 67 
N. J. L. 178, 50 Atl. 780; so in Maryland; 
Dize V. Lloyd, 36 Fed. 651. 

Oysters, although shipped unopened, as 
taken from the water, may come within the 



prohibition of the Food and Drugs Act, sec. 
2, when, by reason of the condition of the 
waters in which they are grown, they con- 
tain harmful bacteria which constitutes 
adulteration within the act; U. S. v. Sprague, 
208 Fed. 419. 

A riparian owner has not the right to 
bed oysters along his entire water front; 
Hess V. Muir, 65 Md. 586, 5 Atl. 540, 6 Atl. 
673. 

See Fisheet; Navigable Waters ; In- 
spection Laws; License. 



p.p. 



2440 



PACKAGE 



P. P. See Per PBOOTmATioNEM:; In Pbo- 

PEIA PEESONA. 

PAAGE. A toll for passage througli an- 
other's land. 

PACARE. To pay. Jacob. 

PACE. A measure of length, containing 
two feet and a half. The geometrical pace 
is five feet long. The common pace Is the 
length of a step; the geometrical is the 
length of two steps, or the whole space pass- 
ed over by the same foot from one step to 
another. 

PACIFIC BLOCKADE. A means of coer- 
cion short of war, usually adopted by the 
joint action of several nations. An instance 
of it occurred when Great Britain and Ger- 
many united to prevent the slave traffic and 
stop the importation of arms on the east 
coast of Africa; Snow, Int. Law 79. In 
1827 Greece was blockaded by France, Rus- 
sia, and Great Britain; in 1850 the Greek 
ports were blockaded by Great Britain, and 
again in 1855 by the combined fleets of the 
five Great Powers. 

In the blockade of Mexico by France in 
1838, neutral vessels as well as Mexican 
were both seized and condemned. In other 
cases both classes of ships were seized, but 
were restored without compensation at the 
termination of conflict. In the blockades of 
Greece in 1850 and 1886, only Greek vessels 
were sequestrated. 

In 1887 the Institute of International Law 
unanimously declared in favor of the legal- 
ity of pacific blockade, subject to these con- 
ditions: "(1) That the neutral flag can en- 
ter freely; (2) that there must, of course, 
be formal notice and a sufficient force; and 
(3) that ships of the blockaded country may 
be sequestrated, but should be restored with 
their cargoes at the end of the blockade, but 
without compensation." See 21 L. Mag. &amp; 
Kev. 285 ; 2 Oppen. §§ 40-49 ; Blockade. 

PACIFICATION (Lat. pax, peace, facere, 
to make). The act of making peace between 
two countries which have been at war; the 
restoration of public tranquillity. 

PACK. To deceive by false appearances; 
to counterfeit; to delude. 

PACKAGE. A bundle put up for trans- 
portation or commercial handling. A par- 
cel is a small package; U. S. v. Goldback, 
1 Hugh. 529, Fed. Cas. No. 15,222; Southern 
Exp. Co. V. Crook, 44 Ala. 468, 4 Am.. Rep. 
140; where a bale of cotton was held not 
a package; contra, Lamb v. Transp. Co., 2 
Daly (N. Y.) 454. See L. R. 9 Ex. 67. 

The word as used In the federal Food and 
Drugs Act refers to the immediate container 
of the article which is intended for con- 



sumption by the pubUc ; McDermott v. State, 
228 U. S. 115, 33 Sup. Ct. 431, 57 L. Ed. 754. 

Certain duties charged in the port of Lon- 
don on the goods imported and exported by 
aliens. Now abolished. Whart. Lex. See 
Obiginal Package. 

PA C K E D P A R.C E LS. The name for a con- 
signment of goods consisting of one large 
parcel made up of several small ones, col- 
lected from different persons by the imme- 
diate consignor, who united them into one 
for his own profit, at the expense of the car- 
rier. Whart. 

PACKER. A person employed In England 
by merchants to receive and (in some in- 
stances) to select goods from manufacturers, 
dyers, calenders, etci, and pack the same for 
exjwrtation. Arch. Bankr., 11th ed. 37. 

In the United States, one engaged in the 
business of slaughtering and packing cattle, 
sheep and hogs preparing their products for 
sale. 

Their business is not interstate commerce ; 
U. S. V. Boyer, 85 Fed. 425; merely because 
the yards are located in two states and it 
does business in both, though, as to stock 
shipped from one state to another, it may 
be interstate commerce and to that extent 
exempt from state regulation; Cotting v. 
Stock Yards Co., 79 Fed. 679. 

The acts of congress (1 Supp. Rev. Stat, 
937, and 2 Supp. Rev. Stat. 403) whereby 
the Secretary of Agriculture is empowered 
to have made a careful inspection of cattle, 
etc., at slaughter houses located In the sev- 
eral states, the products of which are in- 
tended for sale in other states or in foreign 
countries, were held unconstitutional in U. 
S. V. Boyer, 85 Fed. 425. 

They may be subjected to a license tax by 
a state for doing business therein; Kehrer 
V. Stewart, 197 U. S. 60, 25 Sup. Ct. 403, 49 
L. Ed. 663 ; Armour Packing Co. v. Lacy, 200 
U. S. 226, 26 Sup. Ct 282, 50 L. Ed. 451; 
though the greater portion of the business 
may be interstate in its character; id.; 
Smith V. Clark, 122 Ga. 528, 50 S. B. 480. 
Their business is of such a nature as tojus- 
tify a state in imposing rules for their gov- 
ernment; Cotting V. Stock Yards Co., 79 
Fed. 679. 

PACKING A JURY. Improperly and cor- 
ruptly selecting a jury to be sworn and im- 
panelled for the trial of a cause. Mix v. 
Woodward, 12 Conn. 289. 

PACTIONS. In International Law. Con- 
tracts between nations which are to be per- 
formed by a single act, which done, the con- 
tract is at an end. 

PACTUM. In Civil Law. An agreement 
made by two or more persons on the same 



PACTUM 



2441 PACTUM DE NON PETENDP 



subject, In order to form some engagement, 
or to dissolve or modify one already made : 
Conventio eat duoruni in idem plaoitum con- 
sensus de re solvenda, id est faoienda vel 
prcBstanda. Dig. 2. 14; Clef des Lois Bom.; 
Ayllffe, Pand. 558; Merlin, Bip. Facte. 

PACTUM COMMISSORIUM. An agree- 
ment of forfeiture. See Lex Commissobia. 

PACTUM CONSTITUTit PECUNI/E 
(Lat.). In Civil Law. An agreement by 
wblch a person appointed to his creditor a 
certain day, or a certain' time, at which he 
promised to pay ; or it may be defined sim- 
ply an agreement by which a person prom- 
ises a creditor to pay him. 

When a person by this pact promises his 
own creditor to pay him, there arises a new 
obllgatieai, which does not destroy the for- 
mer by which he was already bound, but 
which 1§ accessory to it; and by this mul- 
tiplicity of obligations the right of the cred- 
itor Is strengthened. Pothler, Obi. pt. 2, c. 
6, s. 9. 

There is a striking conformity between the pactum 
constitutce pecunia, as above defined, and our m- 
dehitatus asswmpsit. The pactum constitute pe- 
cunios was a promise to pay a subsisting debt, 
whether natural or cItII. made in such a manner as 
not to extinguish the preceding debt, and Introduced 
by the pr£etor to obviate some formal difficulties. 
The action of indebitatus assumpsit was brought 
upon a promise for the payment of a debt ; it is not 
subject to the wager of law and other technical dif- 
ficulties of the regular action of debt ; but by such 
promise the right to the action of debt was not ex- 
tinguished nor varied; i Co. 91, 95. See 1 H. Bla. 
550, 850; Brooke, Abr. Action sur le Case (pi. ■, 69, 
72) ; 4 B. &amp; B. 295 ; 1 Chitty, Pi. 89. 

PACTUM DE NON ALIENANDO. A 

clause Inserted in mortgages in Louisiana 
which secures to the mortgage creditor the 
right to foreclose his mortgage by execu- 
tory process directed solely against the mort- 
gagor, and gives him the right to seize and 
sell the mortgaged property, regardless of 
any subsequent alienations. Avegno v. 
Schmidt, 35 La. Ann. 585 ; Shields v. Schlff, 
124 U. S. 355, 8 Sup. Gt. 510, 31 L. Ed. 445. 
This rule applies to an alienation by con- 
demnation In proceedings for confiscation, 
and as against the helrs-at-law of the per- 
son whose property is confiscated ; AVegno v. 
Schmidt, 113 U. S. 293, 5 Sup. Ct. 487, 28 L. 
Ed. 976. If a mortgage debtor in Louisiana, 
in a suit to foreclose a mortgage containing 
this clause, waives the benefit of prescrip- 
tion, those who take through him are es- 
topped from pressing It, as effectually as he 
is estopped; Shields v. Shiff, 124 U. S. 351, 
8 Sup. Ct. 510, 31 L. Ed. 445. 

PACTUM DE NON PETENOO (Lat.). In 
Civil Law. An agreement made between a 
creditor and his debtor that the former will 
not demand from the latter the debt due. 
By this agreement the debtor is freed from 
his obligation. This is not unlike the cove- 
tiant not to sue, of the common law. Wolff, 



Dr. de la Nut. § 755 ; Leake, Contr., 3d ed. 
798. 

PACTUM DE QUOTA LITIS (Lat). In 
Civil Law. An agreement by which a cred- 
itor of a sum difficult to recover promises a 
portion — for example, one-third — to the per- 
son who will undertake to recover it. In 
general attorneys should abstain from mak- 
ing such a contract : yet it is not unlawful 
at common law. See Champerty. 

PAIN FORTE ET DURE, See Peine 

FOETE ET DUBE. 

PAINS AND PENALTIES. See BiLi. OF 
Pains ahd Penalties. 

PAINTING. A likeness, image, or scene 
depicted vrtth paints. Cent. Diet. The term 
does not necessarily mean anything upon 
which painting has been done by a work- 
man, but rather something of value as a 
painting and something on which skill has 
been bestowed in producing It; 3 Bxch. Div. 
121. Whether certain articles fall within the 
description of paintings as used In a statute 
is a question of fact for a jury ; id. 

As to copyright in paintmgs, see Copy- 

BIGHT. 

PAIRING-OFF. A system in vogue both 
in parliament and in legislative bodies in 
this country, whereby a member agrees with 
a member on the opposite side that they 
shall both be absent from voting during a 
given time, or upon a particular question. 
It Is said to have originated in the house of 
commons in Cromwell's time. In the House 
of Commons, it may be arranged by the 
"whips." See May, ParL.Prac. 

PAIS, PAYS. A French word, signify- 
ing country. In law, matter in pais Is mat- 
ter of fact, in opposition to matter of rec- 
ord ; a trial per pais is a trial by the coun- 
try,— that Is, by a jury. See In Pais. 

PALACE CAR. See Sleeping Cab. 

PALACE COURT. See Cotjbt or the 
Stewabd and Mabshall. 

PALAGIUM. A duty to lords of manors 
for exporting and importing vessels of wine 
at any of their ports. Jacob. 

PALATINE. See County Palatine ; 
CouETs OF County Palatine. 

PALLIO COOPERIRE. (To cover with a 
cloak.) See Legitima,tion ; Mantle Chh,- 

DEEN. 

PALMARIUM. In Civil Law. A condition- 
al fee for professional services in addition 
to the lawful charge. See Advocate. 

PALMISTRY. The art or practice of tell- 
ing fortunes by a feigned interpretation of 
the lines and marks on the hand. The word 
is used by good writers In the sense of a trick 
with the hand. 2 Bxch. Div. 268. 

PAMPHLET. A small book' usually print- 
ed In octavo form and stitched. 



PAMPHLET 



2442 



PANDECTS 



Pamphlet laws. The name given in some 
states to the publication of tlie acts of the 
legislature. In Pennsylvania and Delaware 
they are originally published from session 
to session, unbound, with continuous paging, 
and indexed and bound after a number of 
sessions. 

PANAMA CANAL. The act of June 28, 
1902, authorized (section 1) the purchase of 
the French Panama Canal Company and 
(section 2) the acquisition from the Repub- 
lic of Colombia of the perpetual control of a 
strip of land not less than six miles in 
width, extending from the Caribbean Sea 
to the Pacific Ocean, with the right to build 
and maintain a canal thereon, and the right 
to operate and maintain perpetually the 
Panama railroad, if its ownership or a con- 
trol thereof shall have been acquired by the 
United States, and also jurisdiction over the 
same and the ports at the end thereof, etc. 
The President is authorized to acquire ad- 
ditional territory and rights from Colombia, 
in his discretion. By section 3, the Presi- 
dent is authorized to construct the canal. 
Section 7 creates the Isthmian Canal Com- 
mission of seven members appointed by the 
President, with the consent of the Senate, to 
serve until the completion of the canal, or 
unless sooner removed by the President. 
(By act of Aug. 24, 1912, the President is 
authorized to discontinue the commission 
and to complete, govern and operate the ca- 
nal by a governor, who shall serve for four 
years.) 

The act of April 28, 1904, authorized the 
President to take possession of the "Canal 
Zone" of the width of four miles on each 
side of the centre line of the canal, and ex- 
tending three marine miles from low water 
mark at each end of the Zone, also a group 
of islands in the Bay of Panama. Ratifica- 
tions of the treaty with the Republic of 
Panama were exchanged February 26, 1904. 
By act of Aug. 24, 1912, the Zone was made 
ten miles in width, excluding Panama and 
Colon and their harbors. 

The title of the United States to the Canal 
Zone is not imperfect because the treaty does 
not contain technical terms of conveyance, 
or because the boundaries are not sufficient 
for identification, the ceded territory having 
been practically identified by the concurrent 
action of the two nations; Wilson v. Shaw, 
204 U. S. 24, 27 Sup. Ct. 233, 51 L. Ed. 351. 
Congress has power to create interstate high- 
ways. Including canals, and also those within 
territories and outside of state lines; id. 

PANDECTS. In Civil Law. The name of 
an abridgment or compilation of the civil 
law, made by Tribonlan and others, by order 
3f the emperor Justinian, and to which he 
gave the force of law, A. D. 533. 

It Is also known by the name ot the Digest, be- 
cause in his compilation the writings of the jurists 
were reduced to order and condensed quasi digestice. 



The emperor, in 530, published an ordinance entitled 
De ConcepUone Digestorum, which was addressed 
to Tribonlan, and by which he was required to select 
some ot the most distinguished lawyers to assist 
him In composing a collection of the best decisions 
of the ancient lawyers, and compile them In fifty 
books, without confusion or contradiction. The in- 
structions of the emperor were to select what was 
useful, to omit what was antiquated or superfluous, 
to avoid contradictions, and by the necessary 
changes, to produce a complete body of law. This 
work was a companion to the Code of Justinian, 
and was to be governed In Its arrangement ot topics 
by the method of the Code. Justinian allowed the 
commissioners, who were sixteen in number, ten 
years to compile It ; ' but the work was completed 
in three jgears, and promulgated In 533. A list ot 
the writers from whose works the collection was 
made, and an account of the method pursued by 
the commissioners, will be found in Smith's Diet, of 
Gr. &amp; Rom. Antlq. About a third of the collection 
is taken from Ulplan ; Julius Paulua, a contempo- 
rary pf Ulplan, stands next: these two contributed 
one-half ot the Digest. Fapinlan comes next. The 
Digest, although complied in Constantinople, was 
originally written in Latin, and afterwards trans- 
lated into Greek. 

The Digest is divided in two different ways: the 
first Into fifty books, each hook In several titles, 
and each title Into several extracts or teges, and at 
the head ot each series ot extracts Is the name of 
the lawyer from whose work they were taken. The 
fifty books are allotted In seven parts. 

The division Into digestum vetits (book first to 
and Including title second of book twenty-fourth), 
digestum infortiatum (title third ot book twenty- 
fourth, to and Including book thirty-eighth), and 
digestum novum (from book thirty-ninth to the 
end), has reference to the order In which these 
three parts appeared. As to the methods of citing 
them, see Citation op Authokitibs. 

The style ot the work Is very grave and pure, and 
contrasts In this respect with that ot the Code, 
which Is very far from classical. On the other 
hand, the learning ot the Digest stands rather In 
the discussing ot subtle questions ot law, and enu- 
merations of .'the variety ot opinions of ancient 
lawyers thereupon, than In practical matters of 
daily use, of which the Code so simply and directly 
treats, gee Ridley, View, pt. 1. ch. 1, 2. 

While the Pandects form much the largest frac- 
tion of the Corpus Juris, their relative value and 
importance are far more than proportional to their 
extent. They are. In ta,ct, the soul of the Corpus 
Juris. Hadley, Rom. L. ll. 

It covered the domain of private law and the 
dealings of men with each other. "Its design was 
noble, but its execution was exceedingly imperfect." 
James C. Carter, The Law, etc., 288. 

See CivHi Daw. 

PANEL (diminutive from either pane, 
apart, or page, pagella. Cowell). In Prac- 
tice. A schedule or roll, containing the 
names of jurors summdned by virtue of a 
writ of venire facias, and annexed to the 
writ. It is returned into court whence the 
venire issued. Co. Litt. 158 6; 3 Bla. Com. 
353; People v. Ooyodo, 40 Cal. 586. See 
Beasley v. People, 89 111. 575. The word 
may be used to designate either the whole 
number of jurors summoned or those select- 
ed by the clerk by lot according to the con- 
nection ia which it is used. State v. Gur- 
lagh, 76 la. 141, 40 N. W. 141. 

PANTOMIME. A dramatic performance 
in which gestures take the place of words. 
3 O. B. 871. 



PAPACY 



2443 



PAPBIl-BOOK 



PAPACY.' See Papist; Roman Oathouo 
Chuech ; Papal Supbemaot. 

PAPAL SUPREMACY. The supremacy 
which the Pope claimed not only over the 
Emperor of the Holy Roman Empire, but 
over all other Christian princes. The theory 
was that they stood to the Pope as feudal 
vassals to a supreme lord ; as such, the Pope 
claimed the right to enforce the duties due 
to him from his feudal subordinates through 
an ascending scale of penalties culminating 
in the absolution of the prince's subjects 
from the bonds of allegiance, and in the dis- 
position of the sovereign himself. The papal 
supremacy was overthrown in England by 
acts of the Parliament which met in 1529 
and was dissolved in 1536, ending in the 
Act of Supremacy. See Hannis Taylor, Sci- 
ence of Jurispr. ; Boyce, Holy Rom. Emp. ; 
Freeman, Sel. Hist. Essays; 2 Phill. Intern. 
Law. 

PAPER. A manufactured substance com- 
posed of fibres (whether vegetable or ani- 
mal) adhering together in forms consisting 
of sheets of various sizes and of different 
thicknesses, used for writing or printing or 
other purposes to which flexible sheets are 
applicable. 4 H. &amp; N. 470. Books are not 
paper within the meaning of the tariff act ; 
Pott V. Arthur, 104 U. S. 735, 26 K Ed. 909. 

In English Practice. The list of cases in- 
tended for argument. See Papee-Days. 

PAPER BLOCKADE. An ineffective block- 
ade. See Blockade. 

PAPER-BOOK. In Practice. A book or 
paper containing an abstract of all the facts 
and pleadings necessary to the full under- 
standing of a case. 

The issues in actions, etc., upon special 
pleadings, made up by the clerk of the pa- 
pers, who is an oflBcer for that purpose. Up- 
on an issue in law, it is termed the demur- 
rer-book. The clerks of the papers of the 
court of K. B., in all copies of pleas and pa- 
per-books by them made up, shall subscribe 
to such paper-books the names of the counsel 
who have signed such pleas, as well on be- 
half of the plaintiff as defendant ; and in all 
paper-books delivered to the judges of the 
court, the names of the counsel who did sign 
those pleas are to be subscribed to the books 
by the clerks or attorneys who deliver the 
same. Jac. L. Diet. ; 2 Hill, Abr. 268. 

The courts of error, and other CQurts, on 
arguments, require . that the judges shall 
each be furnished with such a paper-book; 
Tr. &amp; H. Pr. 867. In Pennsylvania the 
printed copy of the record, the argument, 
etc., used in the supreme and superior courts 
is so called. 

In the court of king's bench, in England, 
the transcript containing the whole of the 
proceedings filed or delivered between the 
parties, when the issue joined is an issue 
in fact, is called the paper-book. Steph. PI. 



95 ; 3 Bla. Com. 317; 3 Chitt. Pr. 521 ; 2 Stra. 
1131, 1266 ; 2 Wils. 243. 

PAPER CREDIT. Credit given on the se- 
curity of any written obligation purporting 
to represent property. 

PAPER-DAYS. In English Law. Days on 
which special arguments are to take place. 
iTiesdays and Fridays in termtime were pa- 
per-days appointed by the court Lee, Diet, 
of Pr.; Archb. Pr. 101. 

PAPER MONEY. The engagements to pay 
money which are issued by governments and 
banks, and which pass as money, Pardessus, 
Droit. Com. n. 9. Bank-notes are generally 
considered as cash, and will answer all the 
purposes of • currency ; but paper money is 
not a legal tender if objected to. But see 
Leqal Tendeb. 

See National Banks; Monet; Gold. 

PAPER OFFICE. An ancient ofiBce in the 
palace of Whitehall, wherein state papers 
are kept. Also an ancient office for the court 
records in the court of queen's bench, some- 
times called the paper-mill, Moz. &amp; W. See 
Jac. L." Diet. 

PAPER TITLE. A title to land evidenced 
by one or more conveyances, the term gen- 
erally Implying that such title, while It has 
color or plausibility, is without substantial 
validity. See Colob of Title. 

PAPERS. The term does not mean news- 
papers or perhaps even Include them v?ithin 
the meaning of a statute, the object of -which 
is to prevent a jury from receiving any evi- 
dence, papers, or documents not authorized 
by the court. State v. Jackson, 9 Mont. 508, 
24 Pac. 216. In a will, "all my books and 
papers" include a promissory note; Perkins 
V. Mathes, 49 N. H. 107. 

The constitution of the tTnited States pro- 
vides that the rights of the people to be se- 
cure in their persons, houses, papers, and 
effects, against unreasonable searches and 
seizures shall not be violated. See Seaech 
Waeeant. 

PAPIST. A term formerly applied in 
Great Britain to Roman Catholics. 

By the act ot 10 Geo. IV. c. 1, known as the Cath- 
olic Emancipation Act, Roman Catholics were re- 
stored in general to the JuU enjoyment of all civil 
rights, except that of holding ecclesiastical offices 
and certain high appointments in the state. Before 
that act their condition had been much ameliorated 
by various statutes, beginning with 18 Geo. III. c. 
60. As to the right of holding property for religious 
purposes, the 2 &amp; 3 Wm. IV. c. 115, placed them on 
a level with Protestant dissenters, and the 7 &amp; 8 
Vict. 0. 102, and 9 &amp; 10 Vict. c. 49, repealed all en- 
actments oppressive to Roman Catholics. See 
Whart. Lex. 

See Papal Supeemacy; Roman. Catholic 
Chuech. 

PAR, Equal. It is used to denote a state 
of equality or equal value. Bills of exchange, 
stocks, and the like, are at par when they 
sell for their nominal value; above par, or 



PAR 



2444 



PARALLEL 



Mlow par, when they sell for more or less ; 
State of Illinois v. Delafleld, 8 Paige (N. Y.) 
527. 

PAR DELICTUM. Equal guilt See In 
Paei Delicto ; Pabi Delicto. 

PAR OF EXCHANGE. The par of the 

currencies of any two countries means the 
equivalence of a certain amount of the cur- 
rency of the one in the currency of the other, 
supposing the currency of both to be of the 
precise weight and purity fixed by their re- 
spective mints. Delafield v. Illinois, 26 
Wend. (N. Y.) 224. The exchange between 
the two countries is said to be at par when 
bills are negotiated on this footing. Bowen, 
Pol. Econ. 321. See 11 East 267. 

PAR ONERI. Equal to the burden or 
charge, or to the detriment or damage. 

PAR VALU E. A current phrase having no 
other meaning than the value of the pound 
sterling formerly fixed by law for the pur- 
poses of revenue. Com. v. Haupt, 10 Allen 
(Mass.) 44. It is commonly used to indicate 
the face value of bonds or stpck. 

PARAGE. Equality of blood, name, or 
dignity, but more especially of land in the 
partition of an inheritance between co-heirs. 
Co. Litt. 166 &amp;. See Tenure. 

In Feudal Law. Where heirs took of the same 
stock and by same title, but, from right of primo- 
geniture, or some other cause, the shares were un- 
equal, the younger was said to hold of the elder, 
jwre et titulo paragii, by right and title of parage 
being -equal in everything but the quantity, and ow- 
ing no homage or fealty. CalT. Lex. See 2 Foil. &amp; 
Maicl. 261, 274. 289. 

PARAGIUM (from the Latin adjective 
par, equal; made a substantive by the ad- 
dition of agium; 1 Thomas Co. Litt. 681). 
Equality. 

In Ecclesiastical Law. The portion which 
a woman gets on her marriage. Ayl. Par. 
336. 

In Domesday Book there are many Instan- 
ces in which slaves or soldiers held manors 
or fractions of manors 'pariter' or 'm para- 
gio.' This feudal tenancy was fully devel- 
oped on the continent. Seebohm, Tribal Cus- 
toms in Anglo-Sax. Law 513. 

PARAGRAPH. A distinct part of a dis- 
course or writing relating to a particular 
point. 

An entire or integral statement of a cause 
of action equivalent to a count at common 
law. Bailey v. Mosher, 63 Fed. 488, 11 C. C. 
A. 304. 

The term paragraph in an acit of congress 
will be construed to mean seption whenever 
to do so accords with the legislative intent; 
Alfrey v. Colbert, 168 Fed. 231, 93 C. C. A. 
517. 

PARALLEL. Extending in the same di- 
rection, and in all parts equidistant; hav- 
ing the same direction or tendency. Postal 
Tei; e. Co. V. R. Co., 88 Va. 920, 14 S. E. 803. 



See Cronln v. R. Co., 144 Mass. 254, 10 N. 
E. 833. 

In the specification of a patent the word 
was construed in its popular sense of go- 
ing side by side and not in its purely math- 
ematical sense; 2 App. Cas. 423; and so 
in Fratt v. Woodward, 32 Cal. 231, 91 Am. 
Dec. 573; Williams v. Jackson, 5 Johns. (N. 
T.) 489; where It was held that parallel 
lines were not necessarily straight lines.. 

As to parallel and competing railroads, see 
Meegee; Railroads; Restraint of Trade. 

PARAMOUNT (Pflr, by, mounter, to as- 
cend). Above; upwards. Kelh. Norm. Diet. 
Paramount especifli, above specified. Plowd. 
209 0. 

That which is superior: usually applied 
to the highest lord of the fee of lands, tene- 
ments, or hereditaments. Fitzh. N. B. 135. 
Where A lets land to B, and he underlets 
them to O, in this case A is the paramount 
and B is the mesne landlord. See 2 Bla. 
Com. 90; 1 Thomas, Co. Litt. 484, n. 79, 485, 
n. 81; Mesne. 

PARANOIA. A form of insanity which 
comes under the class of degenerative dis- 
eases. The main fundamental characteristic 
of this disease is a delusion which has be- 
come a part of the belief of the individual, 
and which he believes himself able to ex- 
plain and defend. 3 Witth. &amp; Beck. Med. 
Jur. 288. 

It is sometimes characterized as logical 
perversion, and is said to have "misplaced 
the antiquated term monomania, which not 
only implied that the delusion was restrict- 
ed to one subject, but was otherwise insuf- 
ficient and misleading;" 2 Clevenger, Med. 
Jur. 860. The memory, emotions, judgment, 
and conceptions are in most cases unim- 
paired, though each of these mental divisions 
may be involved ; id. It is characterized by 
systematized delusions, the term taking the 
place of "monomania" or "partial insanity"; 
Taylor v. McCUntock, 87 Ark. 243, 112 S. W. 
405; 

The intellect" is rarely much involved. In 
all other relations the Individual may be 
able to carry on his business in life. There 
is little doubt but that they are thoroughly 
responsible for their own actions. But if 
the act be the result of their delusion it is 
not so much a question of their ability to 
control their actions, as that they do not at- 
tempt to do so. 3 Witth. &amp; Beck. 289. 

A belief in witches is not such an insane 
delusion as to excuse one from the conse- 
quences of his act in killing one he believed 
to be a witch responsible for deaths among 
his people and his tribe; Hotenia v. U. S., 
186 U. S. 413, 22 Sup. Ct. 895, 46 L. Ed. 1225. 

Where a charge presents the general rule 
applicable to the defence of insanity, it Is 
not necessary to use the term "paranoia," or 
"delusional insanity"; Minder v. Georgia 
183 U. S. 559, 22 Sup. Ct 224, 46 L. Ed. 328! 



PARAPHERNA 



2445 



PARAPHERNAUX BIENS 



PARAPHERNA (Lat). In Civil Law. 

Goods brought by wife to husband over and 
above her dower (dos). Voc. Jur. Utr.; 
Fleta, lib. 5, c. 23, § 6; Mack. 0. L. § 529. 

In medlsfival times the "res parapherna" 
were all the goods other than the "dos." 
These the husband did not own and of them 
the wife could make her will. 3 Holdsw. 
Hist. B. li. 426. 

PARAPHERNALIA. Apparel and orna- 
ments of a wife, suitable to her rank and 
degree. 2 Bla. Com. 435. 

Those goods which a wife could bequeath 
by her testament. 2 Poll. &amp; Maitl. 427. 

It is property brought to the marriage by 
one of the spouses. There can be no such 
thing as paraphernal property prior to mar- 
riage ; Le Boeuf v. Melancon, 131 La. 148, 59 
South. 102. 

These are su'bject to the control of the 
husband during Ills lifetime ; 3 Atk. 394 ; 
but go to the wife upon his death, in pref- 
erence to all other representatives; Cro. 
Car. 343; and cannot be devised away by 
the husband ; Noy, Max. They are liable 
to be sold to pay debts on a failure of assets ; 
1 P. Wms. Y30. See, also, 2 Atk. 642; 11 
Vin. Abr. 176. 

While a married woman may acquire title 
to articles of apparel by gift from her hus- 
band, yet her mere use and enjoyment of 
such articles purchased by her husband does 
not give title thereto as her separate prop- 
erty; State V. Pitts, 12 S. C. 180, 32 Am. 
Rep. 508. See, also, Pratt v. State, 35 Ohio 
St. 514, 35 Am. Rep. 617. The wearing ap- 
parel purchased by a married woman after 
her marriage, with her husband's money, oi 
upon his credit, belongs to him as against her 
creditors; Smith v. Abair, 87 Mich. 62, 49 
N. W. 509. In New York, by statute, a mar- 
ried woman may sue in her own Iiame for 
injury to her paraphernalia ; Rawson v. R. 
Co., 48 N. r. 212| 8 Am. Rep. 543; but in the 
absence of proof of a gift to her, the husband 
•can sue; Curtis v. R. Co., 74 N. Y. 116, 30 
Am. Rep. 271. 

In some states, the paraphernalia of a 
Tvife is protected by statute (in Georgia by 
name, and in Rhode Island and Colorado 
by description). The articles covered by 
one or more "of the statutes are : wearing 
apparel of the wife and such ornaments. 
Jewelry, silver, table ware, plate, and such 
articles of property as have been given to 
her for her own use and comfort. In Lou- 
isiana the property not declared to be 
brought in marriage by the wife, or given 
to her in consideration of the marriage, is 
paraphernalia, and she has a right to admin- 
ister it without the assistance of her hus- 
band ; but as to any which Is administered 
by her husband without her opposition, he is 
accountable for it. . See Mabmed Woman. 
These rules are largely changed by the mar- 
a-ied women's acts. 



PARAPHERNAUX BIENS. In French 
Law. All the property of the wife which is 
not subject to the regime dotal. 

PARATITLA (Lat). In Civil Law. An 

abbreviated explanation of some titles or 
books of the Code or Digest 

PARATUM HABEO (Lat I have ready). 
A return made by the sheriff to a capias ad 
respondendum, which signified that he had 
the defendant ready to bring into court 
This was a fiction, where the defendant was 
at large. Afterwards he was required, by 
statute, to take ball from the defendant and 
he returned cepi corpus and bail-bond. But 
still he might be ruled to bring in the body ; 
White V. Fitler, 7 Pa. 535. • • 

PAR AVAIL. Tenant paravail is the low- 
est tenant of the fee, or he who is the imme- 
diate tenant to one who holds of another. 
He is called tenant paravail because it is 
presumed he has the av^ls or profits of the 
land. Fitzh. N. B. ISS; Co. 2d Inst. 296. 

PARCEL. A part of an estate. Martin v. 
Cole, 38 la. 141 ; 1 Comyns, J)ig. Abatement 
(H 51), Grant (E 10)., Under a statute pro- 
viding for an assessment of unplatted lands, 
synonymous with lot. Terre Haute V. Mack, 
139 Ind. 99, 38 N. B. 468. To parcel Is to 
divide an estate. Bac. Abr. Conditions (O). 

The word "parcel" is not a sufiicient de- 
scription of the property alleged in an in- 
dictment ' to have been stolen. The pris- 
oner was indicted for stealing "one parcel, 
of the value of one shilling, of the goods," 
etc. The parcel In question was taken from 
the hold of a vessel, out of a box broken open 
by the prisoner. Held an insufficient de- 
scription; 7 Cox, C. C 13. See Package. 

PARCEL MAKERS. Two officers in the 
exchequer who formerly made the parcels of 
the escheator's accounts, wherein they charg- 
ed them for everything they had levied for 
the sovereign's use within the time of their 
being in office, and delivered the same to the 
auditors to make up their accounts there- 
with. Whart. Law Lex. 

PARCEL POST. It was provided for by 
act of August 24, 1912 (in effect January 1, 
1913). It includes in fourth-class mail mat- 
ter farm and factory products and all other 
mail matter not Included In the first, second 
and third classes, not exceeding 11 pounds in 
weight nor 72 inches in length and girth 
combined. The rates of postage are fixed by 
eight zones of radial distances : 50 miles ; 
150; 300; 600; 1000; 1400; 1800; all beyond. 

The postmaster general may, subject to 
the consent of the interstate commerce com- 
mission, reform the classification, weight 
limits, rates, zones or conditions, in order to 
promote the service or to insure revenue ade- 
quate to pay the cost of the service. 

He may make regulations indemnifying 
shippers for shipments injured or lost, and 



PARCEL POST 



2446 



PARDON 



for the collection on delivery of the postage 
and price of the article. 

PARCELS, BILL OF. See Bn,l, ov Pae- 

CELS. 

PARCENARY. The state or condition of 
holding title to lands jointly by parceners, 
before the common inheritance has been di- 
vided. 

PA R C E N E RS. The daughters of a man or 
woman seised of lands and tenements in fee- 
simple or fee-tail, on whom, after the death 
of such ancestor, such lands and tenements 
descend, and they enter. See Estate uf Oo- 

PABCENAEY. 

PARCHMENT. Sheepskins dressed for 
writing, so called from Pergamus, Asia Mi- 
nor, where they were invented. Used for 
deeds, and for writs of summons in England 
previous to the Judicature Act, 1875. Whart. 
Lex. 

PARCO FRACTO (Lat). In English Law. 

The name of a writ against one who violently 
breaks a pound 6.nd takes from thence beasts 
which, for some trespass done, or some other 
just cause, were lawfully impounded. 

PARDON. An act of grace, usually pro- 
ceeding from the power intrusted with the 
execuiion of the laws, which exempts the in- 
dividual on whom it is bestowed from the 
punishment which the law inflicts for a 
crime he has committed. U. S. v. Wilson, 
,7 Pet. (P. S.) 160, 8 L. Ed. 640; People v. 
Court of Sessions, 19 N. Y. Supp. 508. 

It is a remission of guilt and a declaration 
of record by the authorized authority that a 
particular individual is to be relieved from 
the legal consequences of a particular crime ; 
Territory v. Richardson, 9 Okl. 579, 60 Pac. 
244, 49 L. R. A. 440. 

Every pardon granted to the guilty is in 
derogation of the law ; if the pardon be just, 
the law is bad ; for where legislation and the 
administration of the law are perfect, par- 
dons must be a violation of the law. But, as 
human actions are necessarily imperfect, the 
pardoning power must be vested somewhere, 
in order to prevent Injustice when it is as 
certained that an error has been committed. 

An absolute pardon is one which frees the 
criminal without any condition whatever. 

A conditional pardon is one to which a con- 
dition is annexed, performance of which is 
necessary to the validity of the pardon. Ex 
par.e Hunt, 10 Ark. 284; State v. Fuller, 1 
McCord.(S. C.) 178. 

A general pardon is one which extends 
to all offenders of the same kind. It may 
be express, as when a general declaration 
is made that' all offenders of a certain class 
shall be pardoned, or implied, as in case of 
the repeal of a penal statute. Roberts v. 
State, 2 Over. (Tenn.) 423. See Amnesty. 

The pardoning power is lodged in the ex- 
ecutive of the United States and of the vari- 
ous states, and extends to all offences except 



in cases of impeachment. In some states a 
concurrence of one of the legislative bodies 
is required; in other states, boards of par- 
don have been provided, whose recommenda- 
tion of a pardon to the executive is a pre- 
requisite to the exercise of the power. The 
constitutional power of pardon vested in the 
executive Is not subject to legislative con- 
trol, either to limit the effect of a pardon, or 
to exclude from its operation any class of 
offenders; Re Garland, 4 Wall. (U. S.) 333, 
18 L. Ed. 366; State v. Todd, 26 Mo. 175; 
Diehl V. Rodgers, 169 Pa. 316, 32 Atl. 424, 
47 Am. St. Rep. 908. In Pennsylvania, the 
act of March 31, 1860, provides that when 
any person convicted of a felony, etc., has 
endured his punishment, it shall have the 
same effect as a pardon, and he becomes a 
competent witness; this is a legislative par- 
don and has the same effect as an executive 
pardon; U. S. v. Hall, 53 Fed. 352. The 
pardoning power is by no means confined to 
the executive; it was possessed by parlia- 
ment (4 Bla. Com. 401; U. S. v. Wilson, 7 
Pet. [U. S.] 162, 8 L. Ed. 640) ; and from the 
very nature of government, in Pennsylvania 
It is vested in the legislative branch by the 
inherent supreme law-making power, and in 
the executive by constitutional provision; U. 
S. V. Hall, ,53 Fed. 352. 

The power of pardon conferred by the 
constitution upon the president is unlimited, 
except in cases of impeachment. It extends 
to every offence known to the law, and may 
be exercised at any time after its commis- 
sion, either before legal proceedings are tak- 
en, or during their pendency, or after convic- 
tion and judgment. A pardon reaches the 
punishment prescribed for an offence, and 
the guilt of the offender. If granted before 
conviction, it prevents any of the penalties 
and disabilities consequent upon conviction 
from attaching : if granted after conviction, 
it removes thepenaUies and disabilities, and 
restores him to all his civil rights. It gives 
him a new credit and capacity. It blots out 
his guilt and makes him, in the eye of the 
law, as innocent as if he had never commit- 
ted the offence. There is only this limitation 
to its operation; it does not restore offices 
forfeited, or property or interests vested in 
others, in consequence of the conviction and 
judgment; Re Garland, 4 Wall. (U. S.) 333, 
18 L. Ed. 366. See Cowan v. Prowse, 93 Ky. 
156, 19 S. W. 407 ; Cook v. Board of Chosen 
Freeholders, 26 N. J. L. 326; Territory v. 
Richardson, 9 Okl. 579, 60 Pac. 244, 49 L. R. 
A. 440. It may be granted after conviction 
and before sentence while exceptions are 
pending; Com. v. Lockwood, 109 Mass. 323, 
12 Am. Rep. 699, where there is an extended 
discussion of the pardoning power by Gray, 
J., or "before being charged with the crime; 
U. S. V. Burdick, 211 Fed. 492. 

The granting of a full and unconditional 
pardon by the president to a person convict- 
ed of a felony restores his competency as 8 



PARDON 



2447 



PARDON 



witness, and this result Is not affected by a 
recital in a pardon that It was granted for 
the reason, among others, that his testimony 
was desired by the government In- a cause 
then pending in a federal court ; Boyd v. U. 
S., 142 U. S. 450, 12 Sup. Ct. 292, 35 L. Ed. 
1077 ; and a pardon granted after the person 
has served his term of Imprisonment has the 
same effect ;' Missouri, K. &amp; T. B. Co. v. IJow- 
ell (Tex.) 30 S. W. 98. 

There are several ways (as given by 
Judge Cooley) in which the pardoning pow- 
er of the president may be exercised : 1. 
A pardon may be given to a person under 
conviction by name, and this will take effect 
from its delivery, unless otherwise provided 
therein. 2. It may be given to one or more 
persons named, or to a class of persons, be- 
fore conviction, and even before prosecu- 
tion begun. Such a pardon is rather in the 
nature of an amnesty. 3. It may be given 
by proclamation, forgiving all persons who 
may have been guilty of the specified offence, 
or offences; Be Garland, 4 Wall. (U. S.) 
380, 18 L. Ed. 866 ; U. S. v. Klein, 13 Wall. 
(U. S.) 128, 20 L. Ed. 519 ; and in this case 
the pardon takes effect from the time th« 
proclamation Is signed; Lapeyre v. U. S., 17 
Wall. (U. S.) 191, 21 L. Ed. 606. See infra. 
4. It may in any of these ways be made a 
pardon on conditions to be first performed, 
in which case it has effect only on perform- 
ance; or on conditions to be thereafter per- 
formed, in which case a breach, of the con- 
dition will place the offender in the position 
occupied by him before the pardon was is- 
sued; U. S. V. Wilson, 7 Pet. (U. S.) 150, 8 
L. Ed. 640; People v. James, 2 Gaines (N. 
Y.) 57; Ex parte Marks, 64 Gal. 29, 28 Pac. 
109, 49 Am. Rep. 684. 

In Michigan it has been held that a par- 
doned convict charged with having violated 
the conditions of his release must be arrest- 
ed and tried in the same manner as other 
offenders against the law ; People v. Moore, 
62 Mich. 496, 29 N. W. 80 ; but in South Garo- 
llna a convict who has broken the conditions 
of his pardon may be remanded to the peni- 
tentiary to serve out the remainder of his 
sexitence, though the time in which he was 
to serve has expired; State v. Barnes, 32 S. 
0. 14, 10 S. E. 611, 6 U R. A; 743, 17 Am. 
St. Rep. 832. A power to grant pardons on 
condition that the person pardoned shall 
leave the state and not return to it, is not in 
confiict With a constitutional provision which 
provides that no one shall be' exiled from the 
state; Ex parte Hawkins, 61 Ark. 321, 33 S. 
W. 106, 30 L. R. A. 736, 54 Am. St. Rep. 209. 

Gonditions attached to a parole or pardon 
by the board of pardons that are to extend 
beyond, or be performed after the expiration 
of, the term of the sentence are illegal; In 
re Prout, 12 Idaho, 494, 86 Pac. 275, 5 L. R. 
A. (N. S.) 1064, 10 Aim. Gas. 199. An uncon- 
ditional pardon is irrevocable ; Ex parte Rice 
(Tex.) 162 S. W. 891. 



It Is to be exercised in the discretion of 
the power with whom it is lodged. 

As to promises of pardon to accomplices, 
see 1 Ghltty, Gr. L. 83 ; 1 Leach 115. 

In order to render a pardon valid, it must 
express with accuracy the crime Intended to 
be forgiven; 4 Bla. Gom. 400; State v. Mc- 
Intire, 46 N. G. 1, 59 Am. Dec. 566. 

The effect of a pardon is to protect the 
criminal from punishment for the offence 
pardoned; Armstrong's Foundry, 6 Wall. (U. 
S.) 766, 18 L. Ed. 882; shorn v. V. S., 91 U. 
S. 474, 23 L. Ed. 388; but for no other; 
State V. McGarty, 1 Bay (S. G.) 334. It 
seems that the pardon of an assault and 
battery, which afterwards becomes murder 
by the death of the person beaten, would not 
operate as a pardon of the murder ; Com. v. 
Roby, 12 Pick. (Mass.) 496. See Plowd. 401 ; 
People V. McLeod, 1 Hill (N. Y.) 426, 37 Am. 
Deo. 328. In general, the effect of a full 
pardon is to restore the convict to all his 
rights ; Diehl v. Rodgers, 169 Pa. 319, 32 Atl, 
424, 47 Am. St. Rep. 908; even though grant- 
ed after he has served out his ■ sentence, it 
restores his competency to. testis ; Boyd v. 
U. S., 142 U, S. 450, 12 Sup. Ct.. 292, 35. U 
Ed. 1077; but to this there are some excep- 
tions. First, it does not restore civU capaci- 
ty; Com. V. Fugate, 2 Leigh (Va.) 724., See 
Jones V. Harris, 1 Strobh. (S. C.) 160; State 
V. Blaisdell, 33 N. H. 388. Second, it does 
not affect a status of other persons which 
has been altered or a right which has ac- 
crued in consequence of the commission of 
the crime or its punishment; In re Doming, 
10 Johns. (N. Y.) 232; State v. Rowe, 2 Bay 
iS. G.) 565; Holllday v. People, 5 Gilm. (111.) 
214; or third persons who, by the prosecu- 
tion of judicial proceedings, may have ac- 
quired rights to a share in penalties or to 
property forfeited and actually sold; Kirk 
V. Lewis, 9 Fed. 645 ; but see U. S. v. Thom- 
asson, 4 Biss. 336, Fed. Cas. No. 16,479; 
Armstrong's Foundry, 6 Wall. (U. S.) 766, 
18 L. Ed. 882 (as to forfeiture to United 
States). 

In England a pardon removes not only 
the punishment but 'the legal disabilities con- 
sequent on the crime, wherever the latter 
are the consequence of the judgment, but 
where .it is declared by act of parliament 
to be a part of the punishment, as in case 
of perjury under the 5 Eliz. c. 9, pardon will 
not make the person competent; 2 Russ. Gr. 
975, followed in Houghtaling v. Kelderhouse, 
1 Park. Gr. Rep. (N. Y.) 241 ; Foreman v. , 
Baldwin, 24 111. 298. But this distinction 
does not obtain here; Diehl v. Rodgers, 169 
Pa. 316, 32 Atl. 424, 47 Am. St. Rep. 908; 
Be Garland, 4 Wall. (TJ. S.) 333, 18 L. Ed. 
366. It has been held in Ohio that a prison- 
er could not be tried on the charge of being 
a habitual criminal after having been pardon- 
ed by the governor for the previous offence ; 
56 Alb. L. J. 5. 

When the pardon is general, either by an 



PARDON 



2448 



PARENS PATRI^gS 



act of amnesty, or by the repeal of a penal 
law, it is not necessary to plead it ; because 
tbe court is bound to take notice of it; Jenk- 
ins V. CoUard, 145 U. S. 546, 12 Sup. Ct. 868, 
36 L, Ed. 812. A criminal cannot even waive 
such pardon, because by his admittance no 
one can give the court power to punish him 
when it judicially appears there is no law 
to do it. But when the pardon is special, to 
avail the criminal it must judicially appear 
that it has been accepted ; and for this rea- 
son it must be specially pleaded ; 4 Bla. Com. 
401; U. S. V. Wilson, 7 Pet. (U. S.) 150, 8 
L. Ed. 640; and if he has obtained a pardon 
before arraignment, and, instead gf pleading 
it in bar, he pleads the general issue, he 
shall be deemed to have waived the benefit 
of it, and cannot afterwards avail himself 
of it in arrest of judgment ; 1 KoUe 297. See 
1 Dy. 34 a; T. Kaym. 13 ; Evans v. Com., 3 
Mete. (Mass.) 453. 

The power to pardon extends to punish- 
ments for contempt; In re MuUee, 7 Blatchf. 
23, Fed. Cas. No. 9,911. 

All contracts made for the buying or 
procuring a pardon for a convict are void. 

The governor under his power to grant re- 
prieves and pardons may grant a conditional 
pardon in the nature of a parole of the con- 
vict; Fuller V. State, 122 Ala. 32, 26 South. 
146, 45 L. B. A. 502, 82 Am. St Rep. 1. The 
board of pardons is a branch of the execu- 
tive department of the state government and 
its powers and prerogatives as such are 
those of granting clemency to convicted pris- 
oners, but it has no povi^er to increase or ex- 
tend penalties or punishments pronounced by 
sentence of the court ; In re Prout, 12 Idaho, 
494, 86 Pac. 275, 5 L. B. A. (N. S.) 1064, 10 
Ann. Cas. 199. 

One convicted of fraud In obtaining pat- 
ents to public lands was pardoned on condi- 
tion that he would make restitution of the 
lands. He filed a relinquishment thereof. 
Held that no right was wrested from him ; 
Bradford v. U. S., 228 U. S. 446, 33 Sup. Ct. 
576, 57 L. Ed. 912. 

A mayor of a city may be vested with 
power to pardon one convicted of the viola- 
tion of an ordinance. See In re Monroe, 46 
Fed. 52. 

See Amnesty; Executive Powee. 

PARDONERS. Persons who carried about 
the pope's indulgences and. sold them. 
Whart. Law Lex. 

PARENS PATRI&gt;€ (Lat). Father of his 
country. In England, the king : S Bla. Com. 
427; 2 Steph. Com. 528; in the United 
States the state, as sovereign, has power of 
guardianship over i)ersons under disabilities. 
See Fontain v. Bavenel, 17 How. (U. S.) 393, 
15 L. Ed. 80. 

The state and not the general government 
is parens patrm; American L. &amp; T. Co. v, 
Grand Rivers Co., 159 Fed. 775; and is such 
for all her citizens for the protection of their 



aggregate rights ; Louisiana v. Texas, 176 TJ. 
S. 1, 19, 20 Sup. Ct. 251, 44 L. Ed. 347, 

See Escheat. 

PARENT AND CHILD. UaUUty of ei- 
ther for support of the other. In England, 
by 43 Eliz. c. 2, the father and mother, 
grandfather and grandmother of poor, old, 
blind, and impotent persons are obliged to 
furnish them vnth necessaries, ' if of suffi- 
cient ability. But not after majority; 1 
Ld. Raym, 699. 

Statutes of the same tenor have been en- 
acted in some states. The English statute 
may be considered as a part of the common 
law in the United States ; Schoul. Dom. Rel. 
*320; and see Wertz v. Blair Co., 66 Pa. 19. 

In some states the failure to support, or 
the abandonment of, a minor child is a penal 
offence. Except under tliis statute, there ap- 
pears to be no civil obligation on a parent to 
support his minor child ; 11 C. B. 452 ; L. R. 
3 Q. B. 559; or to pay his debts; 6 M. &amp; 
W. 482. To the same eflfect ; White v. Mann, 
110 Ind. 74, 10 N. E. 629 ; Freeman v. Rob- 
inson, 38 N. J. L. 383, 20 Am. Rep. 399 ; Chil- 
cott V. Trimble, 13 Barb. (N. Y.) 502; but 
the contrary view is held in many cases; 
Porter v. Powell, 79 la. 151, 44 N. W. 295, 7 
L. R. A. 176, 18 Am. St. Rep. 353. See Tif- 
fany, Pers. &amp; Dom. Rel. 233; 2 Kent 190. 
Where a parent, though able, neglects to 
provide the necessaries of life and necessary 
medical attendance for a minor child, and 
thereby causes its death, he is guilty of man- 
slaughter, and, if wilfully done, of murder; 
Tiff. Pers. &amp; Dom. Rel. 232; Clark, Cr. L. 
177. 

It is generally the ducy of a mother to 
support her child when she iS' left a widow, 
until he becomes of age or is able to main- 
tain himself; Cummings v. Cummings, 8 
Watts (Pa.) 366; Dedham v. Natick, 16 
Mass. 135 ; Riley v. Jameson, 3 N. H. 29, 14 
Am. Dec. 325; AlUng v. Ailing, 52 N. J. Eq. 
92, 27 Atl. 655; Furman v. Van Sise, 56 N. 
Y. 435, 15 Am. Rep. 441; Girls' Industrial 
Home V. Fritchey, 10 Mo. App. 344; contra, 
Englehardt v. Yung's Heirs, 76 Ala. 534; 
Mowbry v. Mowbry, 64 111. 383 ; and even 
after he becomes of age, if he be chargeable 
to the public, she may, perhaps in all the 
states, be compelled, when she has sufficient 
means, to support him. But when the child 
has property sufficient for his support, she 
is not, even during his minority, obliged to 
maintain him ; 1 Bro. Ch. 387 ; Whipple v. 
Dow, 2 Mass. 415; but will be entitled to 
an allowance out of the income of his estate, 
and, if need be, out of the principal, for his 
maintenance; Osborne v. Van Horn, 2 Fla. 
360; 5 Ves. 194. During the life of the 
father she is not bound to support her child, 
though she have property settled to her. 
separate use and the father be destitute; 4 
CI. &amp; F. 323 ; 11 BUgh, N. S. 62. 

A child is not bound at common law tc 



PARENT AND CHILD 



2449 



PARENT AND CHILD 



maintain his parents; Becker v. Gibson, 70 
Ind. 239; Lebanon v. Griffin, 45 N. H. 558; 
Stone V. Stone, 32 Conn. 142; Herendeen v. 
De Witt, 49 Hnn 53, 1 N. Y. Supp. 467; 
Dawson v. Dawson, 12 la. 512 ; though they 
are infirm and indigent; Edwards v. Davis, 
16 Johns. (N. Y.) 281; any such Uability 
must arise under statute; but under such 
statute an aged parent supported by one 
child with no threat of withdrawal cannot 
maintain an action against another child for 
support; Duffy v. Yordi, 149 Cal. 140, 84 
Pac. 838, 4 L. E. A. (N. S.) 1159, 117 Am. 
St Rep. 125, 9 Ann. Cas. 1017. 

But in many states a liability to support 
indigent parents is imposed by statute, 
where they have the ability to do so ; 2 Kent 
208; Pothier, Du Marriage, 384, 389; Ex 
parte Hunt, 5 Cow. (N. Y.) 284; Howe v. 
Hyde, 88 Mich. 91, 50 N. W. 102; and in such 
case a third person may recover from the 
child for necessaries furnished to such par- 
ent; Howe V. Hyde, 88 Mich. 91, 50 N. W. 
102; McCook Co. v. Kammoss, 7 S. D. 558, 
64 N. W. 1123, 31. L. R. A. 461, 58 Am. St. 
Rep. 854. 

The parent is not liable for necessaries 
furnished to a child unless he has refused 
to furnish them; Smith v. Gilbert, 80 Ark. 
525, 98 S. W. 115, 8 L. R. A. (N. S.) 1098; 
or has. omitted his duty ; Van Valkinburgh 
V. Watson, 13 Johns. (N. Y.) 480, 7 Am. Dec. 
395; or has authorized it; Brown v. De- 
loach, 28 Ga. 486; or there is a proper exi- 
gency ; Keaton v. Davis, 18 Ga. 457. A par- 
ent is not criminally liable for his child's 
acts ; Tiffany, Pers. &amp; Dom. Rel. 241. 

The child may justify an assault in de- 
fence of his parent; 3 Bla. Com. 3. 

If the father be without means to main- 
tain and educate his children according to 
their future expectations in life, courts of 
equity will make an allowance for these pur- 
poses out of the income of their estates, and, 
in an urgent case, will even break into the 
principal ; Watts v. Steele, 19 Ala. N. S. 656 ; 
1 P. Wms. 493 ; In re Bostwick, 4 Johns. Ch. 
(N. Y.) 100; Pearce v. Olney, 5 R. I. 269. 
The father is not bound, without some agree- 
ment, to pay another for maintaining his 
children; 9 C. &amp; P. 497; nor is he bound 
by their contracts, even for necessaries, un- 
less an actual authority be proved, or a clear 
omission of his duty to furnish such neces- 
saries; 20 Eng. L. &amp; Eq. 281; Lefils v, 
Sugg, 15 Ark. 137 ; Eitel v. Walter, 2 Bradf. 
Surr. (N. Y.) 287 ; Keaton v. Davis, 18 Ga. 
457; Ewell, Lead. Cas. 61, n.; Miller v. 
Davis, 45 111. App. 447 ; Manning v. Wells, 8 
Misc. 646, 29 N. Y. Supp. 1044; or unless 
he suffers them to remain away with their 
mother, or forces them from home by hard 
usage; Stanton v. Willson, 3 Day (Conn.) 
37, 3 Am. Dfec. 255 ; but, especially in Amer- 
ica, very slight evidence may sometimes 
warrant the confidence that a contract for 
Bquv.— 154 



the infant's necessaries is sanctioned by the 
father ; Tiffany, Per. &amp; Dom. Rel. 233 ; thus 
he is held bound where he knows the cir- 
cumstances and does not object; Swain y. 
Tyler, 26 Vt. 9; Thayer v. White, 12 Mete. 
{Mass.) 343; Fowlkes v. Baker, 29 Tex. 135, 
94 Am. Dec. 270. Where the court takes 
away from the father the care and custody 
of the children, chancery directs mainte- 
nance out of their own fortunes, whatever 
taay be their father's circumstances; 2 Russ. 
1 ; Macphers. Inf. 224. And if their custody- 
be given to the mother by a decree of di- 
vorce it has been held that the duty of sup- 
porting them devolves on her; Brow v. 
Brightman, 136 Mass. 187; but the father 
still remains liable; Pretzinger v. Pretzinger, 
45 Ohio St. 452, 15 N. E. 471, 4 Am. St. Rep. 
542. His obligation for support of minor 
children is not impaired by a decree of di- 
vorce at the suit of his wife for his miscon- 
duct which gives the custody of the children 
to her but which is silent as to their sup- 
port; Spencer v. Spencer, 97 Minn. 56, 105 
N. W. 483, 2 L. R. A. (N. S.) 851, 114 Am. 
St. Rep. 695, 7 Ann. Cas. 901 ; Keller v. St. 
Louis, 152 Mo. 596, 54 S; W. 438, 47 D. R. A. 
391 ; Maddox v. Patterson, 80 Ga. 719, 6 S. 
E. 581; DoUoff V. Dolloff, 67 N. H. 512, 38 
Atl. 19; Zilley v. Dunwiddie, 98 Wis. 428, 
74 N. W. 126, 40 L. R. A. 579, 67 Am. St. 
Rep. 820; Gibson v. Gibson, 18 Wash. 489, 
51 Pac. 1041, 40 L. R. A. 587 ; L. R. 3 Q. B. 
559 ; contra, Dawson v. Dawson, 110 111. 279; 
Husband v. Husband, 67 Ind. 583, 33 Am. 
Rep. 107 ; Hall v. Green, 87 Me. 122, 32 Atl. 
796, 47 Am. St. Rep. 311 ; McNees v. McNees, 
97 Ky. 152, 30 S. W. 207; Brow v. Bright- 
man, 136 Mass. 187; Rich v. Rich, 88 Hun 
566, 34 N. Y. Supp. 854 ; Brown v. Smith, 19 
R. I. 319, 33 Atl. 466, 30 L. R. A. 680. In a 
note to the Minnesota case first cited, where 
the cases are collected, it is said that they 
are "pretty evenly balanced, though more 
recent authorities seem to sustain the obli- 
gation of the father"; 2 L. R. A. (N. S.) 
851, note. 

Where the wife was separated from her 
husband by reason of his fault and had legal 
custody of the child, the husband was held 
liable for its support as a part of her rea- 
sonable expenses, for which she could pledge 
his credit; L. R. 3 Q.^ B. 559. 

The obligation of the father to maintain 
the child extends only to providing neces- 
sary support, and ceases as soon as the child 
is able to provide for itself, or it becomes 
of age, h6wever wealthy the father may be ; 
2 Kent 190 ; unless the child becomes charge- 
able to the public as a pauper; 1 Ld. Raym. 
699; or be physically or mentally incapable 
of self-support; Mt. Pleasant Overseers v. 
Wilcox, 12 Pa. C. C. R. 447. The obligation 
also ceases during the minority of the child, 
if the child voluntarily abandons the home 
of his father, either for the purpose of seek- 
ing his fortune in the world or to avoid pa- 



PARENT AND CHILD 



2450 



PARENT AND CHILD 



rental discipline and restraint ; Angel v. Mc- 
Lellan, 16 Mass. 28, 8 Am. Dec. 118; Hunt 
V. Thompson, 3 Scam. (111.) 179, 36 Am. 
Dec. 538. There is no legal obligation to 
educate the child, although some dicta and 
statements by textwriters are to the con- 
trary; 1 Bla. Com. 150; 2 Kent 189; it is 
said- that the duty is only a moral one, and 
that there is no case which enforces such 
an obligation ; Tiff. Dom. Rel. 238; Huke v. 
Huke, 44 Mo. App. 308. See Schoul. Dom'. 
"Rel. 315. Where the child's fortune war- 
rants a greater expenditure than the father's 
means will permit, or where the father Is 
unable to support the child, an allowance 
to the father may be made by a court of 
equity out of the child's property for his 
maintenance and education; Coop. t. Eld. 52 ; 
In re Burke, 4 Sandf. Oh. (N.X.) 617; Bla 
V. Brand, 63 N. H. 14; 2 Kent, Com. 191. 

During the lifetime of the father, he is 
guardian by nature or nurture of his chil- 
dren. As such, however, he has charge only 
of the person of the ward, and no right 
to the control or possession either of his real 
or personal estate; Miles v. Boyden, 3 Pick. 
(Mass.) 213. 

When the father dies without leaving a 
testamentary guardian at common law, the 
mother is entitled to be the guardian of the 
person and estate of the infant until he ar- 
rives at fourteen years, when he is able to 
at)point a guardian ; Littleton § 123 ; 2 Atk. 
14 ; Com. Dig. Feme; 7 Ves. 348. See Burk 
V. Phips, 1 Root (Conn.) 487; People v. Wil- 
cox, 22 Barb. (N. Y.) 178; State v. Reuffi, 29 
W. Va. 751, 2 S. E. 801, 6 Am. St. Rep. 676. 
The rights of the widowed mother to the 
earnings and services of her ,mlnor child 
does not appear to have been precisely de- 
termined ; but it is by no means so absolute 
as that of the father ; Pray v. Gorham, 31 
Me. 240 ; Jenness v. Emerson, 15 N. H. 486 ; 
Com. V. Murray, 4 Binn. (Pa.) 487, 5 Am. 
Dec. 412; People v. Mercein, 3 Hill (N. Y.) 
400, 38 Am. Dec. 644; Nightingale v. With- 
ington, 15 Mass. 272, 8 Am. Dec. 101. 

In Pennsylvania, when the father dies 
without leaving a testamentary guardian, 
the orphans' court will appoint a guardian 
until the infant shall attain his fourteenth 
year. 

Custody. The father, in general, is enti- 
tled to the custody of minor children; Tay- 
lor V. ,R. Co., 41 W. Va. 704, 24 S. E. 631; 
People Vi Sinclair, 47 Misc. 230, 95 N. Y. 
Supp. 861 ; Donk Bros. 0. &amp; C. Co. V. Leavitt, 
109 111. App. 385 ; it belongs to him as against 
the mother and particularly as against third 
persons ; Johnson v. Terry, 34 Conn. 259 ; 
but under certain circumstances the mother 
will be awarded custody when the father 
and mother have separated ; Com. v. Addicks, 
5 Binn. (Pa.) 520 ; see Luck v. Luck, 92 Cal. 
6^3, 28 Pac. 787. The father is the natural 
guardian of his child; Donk Bros. 0. &amp; C. 



Co. V. Leavitt, 109 111. App. 385; and as such, 
where there is no sufficient cause for depriv- 
ing him of it, has the legal right to its cus- 
tody; Hernandez v. Thomas, 50 Fla. 522, 39 
South. 641, 2 L. R. A. (N. S.) 203, 111 Am. 
St. Rep. 137, 7 Ann. Gas. 446; and where the 
husband and vrife have separated, the fa- 
ther's right will be recognized; People v. 
Sinclair, 47 Misc. 230, 95 N. Y. Supp. 861. 

In special cases, as when they are of ten- 
der years, or when the habits of the father 
render him an unsuitable guardian, the 
mother is allowed to have possession of 
them; Com. v. Addicks, 2 S. &amp; R. (Pa.) 174; 
In re Waldron, 13 Johns. (N. Y.) 418. 

A child will not be taken from the custody 
of its father and given to its mother when it 
does not appear that his welfare required 
the change ; Day v. Day, 4 Misc. 235, 24 N. 
Y. Supp. 873. 

The mother of a bastard child, as natural 
guardian, has a right to the custody and 
control of such child, even as against the 
putative father, and is bound to maintain 
it ; Somerset v. Dighton, 12 Mass. 387 ; Peter- 
sham V. Dana, id. 483; Com. v. Fee, 6 S. &amp; 
R. (Pa.) 255; but after her death the court 
will, in its discretion, deliver such child to 
the father in opposition to the claims of the 
maternal grandfather; Com. v. Anderson, 1 
Ashm. (Pa.) 55; Stra. 1162. 

The father may lose the right by unfitness 
or voluntary transfer; Bently v. Terry, 59 
Ga. 555, 27 Am. Rep. 399 ; or if the child is of 
tender age and the parents are separated; 
Gray v. Field, 10 Ohio Dec. 170. His right 
is not an absolute one and the court will 
deal with the custody of the children solely 
upon considerations relating to • their own 
welfare ; U. S. v. Green, 3. Mas. 482, Fed. Cas. 
No. 15,256; the right of custody of the par- 
ents is subject to the paramount right of 
the state to interpose whenever required for 
the interest of the child; Wadleigh v. New- 
hall, 136 Fed. 941 ; State v. ReufC, 29 W. Va. 
751, 2 S. E. 801, 6 Am. St. Rep. 676; Merritt 
v. Swimley, 82 Va. 433, 3 Am. St. Rep. 115. 

The unfitness which deprives a parent of 
the right of custody of the child must be pos- 
itive and not comparative, and the mere fact 
that the child would be better cared for is 
not sufficient, but the degree of unfitness is 
a question for the court; Clarke v. Lyon, 
82 Neb. 625, 118 N. W. 472, 20 L. R. A. (N. 
S.) 171. 

The custody was given to paternal grand- 
parents in comfortable circuipstances and 
taken from the mother who had been desert- 
ed and was earning a scant Uving ; Brown v. 
Brown, 2 Ala. App. 461, 56 South. 589. The 
English rule favoring the father has given 
place to the consideration of what is best 
for the child; Turner v. Turner, 93 Miss. 
167, 46 South. 413. Between a parent and 
an outsider, the just claims of the parent 
and the child's duty to the parent must be 



PARENT AND CHILD 



2451 



PARENT AND CHILD 



considered, If the parent can give proper 
care and is not unsuitable ; Moore v. Chris- 
tian, 56 Miss. 408, 31 Am. Rep, 375 ; Staple- 
ton V. Poynter, 111 Ky. 264, 62 S. W. 730, 
53 L. R. A. 784, 98 Am. St. Rep. 411 ; contra, 
Wood V. Wood, 77 N. J. Eq. 593, 77 Atl. 91 ; 
a remarriage does not deprive a mother of 
her right; Moon v. Children's Home Soc, 
112 Va. 737, 72 S. B. 707, 38 L. R. A. (N. 
S.) 418. 

Considerations as to the age and condition 
of the child weigh with the court. The well- 
being of the child, rather than the supposed 
right of either parent, controls; McKim v. 
McKim, 12 R. I. 462, 34 Am. Rep. 694 ; State 
V. Baird, 21 N. J. Bq. 384; Irwin v. Irwin, 96 
Ky. 318, 28 S. W. 664, 30 S. W. 4i7. The 
mother of an illegitimate child -has a right 
to its, custody; 10 Q. B. D. 454. 

Agreements of a parent to transfer to an- 
other the custody of the child are in general 
against public policy and not binding; Her- 
nandez V. Thomas, 50 Pla. 522, 39 South. 
641, 2 L. R. A. (N. S.) 203, 111 Am. St. Rep. 
137, 7 Ann. Cas. 446; contra, Proctor v. 
Rhoads, 4 Ky. L. Rep. 453; but such trans- 
fers have been held valid to an aunt; Bent- 
ly V. Terry, 59 Ga. 555 ; 27 Am. Rep. 399 ; to 
a grandfather (when the parents were living 
apart) ; Clark v. Bayer, 32 Ohio St. 299 ; 30 
Am. Rep. 593; to a grandmother; State v. 
Barney, 14 R. I. 62; to a charitable institu- 
tion (the parents living apart) ; Dumain v. 
(3r Wynne, 10 Allen (Mass.) 270; but when 
the mother paid a weekly sum out of wages 
due from the institution, it was not an ab- 
solute surrender; People v. Paschal, 68 Hun 
344, 22 N. Y. Supp. 881. In some states 
a transfer of the custody by the parent is 
held voidable for want of mutuality and 
as a- delegation of power; People v. Mer- 
cein, 3 Hill (N. T.) 399, 38 Am. Dec. 644; 
Foulke V. People, 4 Colo. App. 519, 36 Pac. 
640; and a transfer has been held invalid of 
a child over fourteen and without his con- 
sent; State V. Smith, 6 Greenl. (Me.) 462, 
20 Am. Dec. 324. 

In one case it is held that where a trans- 
fer of custody is allowed, it is not revocable 
vidthout sufficient cause shown; Janes v. 
Cleghorn, 54 Ga. 9; State v. Barney, 14 R. 
I. 62 ; or unless it is for the benefit of the 
child; People v. Erbert, 17 Abb. Pr. (N. Y.) 
395 ; in such case the wish of the child is 
almost controlling unless it is of tender age, 
and then it must not be placed in jeopardy 
by immature judgment; Curtis v. Curtis, 5 
Gray (Mass.) 535. When the child was 
placed in charge of the grandparents in in- 
fancy and educated and supported by them 
until the age of fourteen, there being no un- 
fitness of- either party, custody was refused 
to the parents and the child was left with 
the grandparents; Workman v. Watts, 74 
S. C. 546, 54 S. B. 775; but an oral agree- 
ment by the father giving the child to its 



aunt to raise was held revocable by him; 
In re Galleher, 2 Cal. App. 364, 84 Pac. 352. 

By many courts it seems to be held that, 
while a parent may relinquish the custody 
of a child to another, in such case there is 
no implication of finality and of loss of the 
right to reclaim; Ex parte Reynolds, 73 S. 
C. 296, 53 S. E. 490, 114 Am. St. Rep. 86, 6 
Ann. Cas. 936 ; Miller v. Wallace, 76 Ga. 479, 
2 Am. St. Rep. 48; State v. Steel, 121 La. 
215, 46 South. 215, 16 L. R. A. (N. S.) 1004 ; 
but there is a very strong presumption that 
a parent will not give away the right to a 
child's custody; Ex parte Reynolds, 73 S. 
C. 296, 53 S. E. 490, 114 Am. St. Rep. 86, 6 
Ann. Cas. 936; a contract of relinquishment 
must be established by a preponderance of 
evidence; Dunkin v. Seifert, 123 la. 64, 98 
N. W. 558; the acquiescence of the parent 
may be considered with other facts tending 
to establish an express contract; Fletcher v. 
Hickman, 50 W. Va. 244, 40 S. B. 371, 55 L. 
R. A. 896, 88 Am. St Rep. 862. 

Some courts have recognized a right of 
contract as to the custody of the children as 
existing in the parents after divorce and 
enforceable against them; Courtright v. 
Courtright, 40 Mich. 633; Ackley v. Burch- 
ard, 11 Wash. 128, 39 Pac. 372; White v. 
White, 75 la. 218, 39 N. W. 277 (where the 
same custody was provided by the contract 
as by the decree) ; but such contracts are 
only enforced if deemed by the court con- 
sistent with the welfare of the children ; 
Lowrey v. Lowrey, 108 Ga. 766, 33 S. E. 421 ; 
Slattery v. Slattery, 139 la. 419, 116 N. W. 
608 ; Connett v. Connett, 81 Neb. 777, 116 N. 
W. 658; Pearce v. Pearce, 30 Mont. 269, 76 
Pac. 289; but in other cases such contracts 
have not been treated as effectual to change 
the natural right of custody ; Hunt v. Hunt, 
4 G. Greene (Iowa) 216; Kremelberg v. 
Kremelberg, 52 Md. 553; Farr v. Emuy, 121 
La. 91, 46 South. 112, 15 L. R. A. (N. S.) 744; 
or to control the action of the court with 
respect to care and custody; Cook v. Cook, 
1 Barb. Ch. (N. Y.) 639; Norval v. Zinsmas- 
ter, 57 Neb. 158, 77 N. W. 373, 73 Am. St. 
Rep. 500. 

Where, in divorce the custody of the child 
is awarded to the mother, after her death 
the right of the father has been held to be 
restored ; In re Blackburn, 41 Mo. App. 622 ; 
People V. Erbert, 17 Abb. Pr. (N. Y.) 399; 
Schammel v. Schammel, 105 Cal. 258, 38 Pac. 
729; but where the custody was given to 
the father who had obtained the divorce on 
the ground of adultery, the court refused to 
restore the child to the mother ; In re Steele, 
107 Mo. App. 567, 81 S. W. 1182. Where the 
mother having custody of the child under the 
decree of divorce died, 'she could not, by will, 
deprive the father of his right to resume the 
custody; McKinney v. Noble, 38 Tex. 195; 
In re NefC, 20 Wash. 652, 56 Pac. 383 ; contra, 
Wilkinson v. Deming, 80 111. 342, 22 Am. Rep. 



PARENT AND CHILD 



2452 



PARENT AND CHIIiD 



192. Where the children are placed in the 
care of the husband, the court is not pre- 
cluded from making an order giving the di- 
vorced wife access to them; [1891] P. 124. 

A petition of a benevolent society averring 
that a boy of seven years living vpith his par- 
ent would become a cripple for life unless 
subjected to a surgical operation, and pray- 
ing ttat he should be committed to the so- 
ciety for that purpose, was refused; In re 
Tony Tuttendario, 21 Pa. Dist. R. 561. 

Where there was an ante-nuptial agree- 
ment that children should be trained in the 
religious faith of the mother and after her 
death two infant children were taken by 
relatives of the father and trained in his 
religious belief, and after four years the 
father died, and applications for guardian- 
ship were made by relatives of both father 
and mother representing opposing beliefs, it 
was held that the relatives of the father 
should keep the children, and that notwith- 
standing the agreement, the four year period 
of training with the father's relatives had 
created attachments 'it was not wise to 
break, the decision being put squarely upon 
the modern view that in questions of cus- 
tody the welfare of the child is the para- 
mount consideration; In re Luck, 7 Ohio N. 
P. 49. 

The rights of the father, while his chil- 
dren remain in his custody, are to have au- 
thority over them, to enforce all his lawful 
commands, and to correct them with modera- 
tion for disobedience; Johnson v. State, 2 
Humphr. (Tenn.) 283, 36 Am. Dec. 322; and 
these rights, the better to accomplish the 
purposes of their education, he may delegate 
to a tutor or instructor; 2. Kent 205. See 

ASSAtTLT; COEBECTION. 

Rights of action. There is no common law 
liability of a parent for torts committed by 
an infant; 8 C. B. N. S. 611; Chastain v. 
Johns, 120 Ga. 977, 48 S. E. 343, 66 L. E, A. 
958; TifEt v. TifEt, 4 Denio (N. T.) 175; 
Shockley v. Shepherd, 9 Houst. (Del.) 270, 
32 Atl. 173 ; unless there is proof of actual 
service or agency; Brohl v. Lingeman, 41 
Mich. 711, 3 N. W. 199; Broadstreet v. Hall, 
168 Ind. 192, 80 N. B. 145, 10 L. R. A. (N. S.) 
933, 120 Am. St. Rep. 356 ; or there is shown 
to have been authority; Ferguson v. Terry, 
1 B. Mon. (Ky.) 96; or acquiescence; Cam- 
eron V. Heister, 10 Ohio Dec. 651 ; Hower v. 
Ulrlch, 156 Pa. 410, 27 Atl. 37; or ratifica- 
tion; Lamb v. Davidson, 69 Mo. App. 107; 
which, however, is not established by a vol- 
untary offer of compromise ; Paulin v. How- 
ser, 63 111. 312; or compensation; Baker v. 
Morris, 33 Kan. 580, 7 Pac. 267. 

But where a parent kept an automobile 
for the general use of his family, and plain- 
tiff was injured by it while driven by his 
daughter for her own pleasure, it was held 
that the father was liable ; Birch v. Aber- 
oromble (Wash.) 133 Pac. 1020. To the 



same effect. Daily v. Maxwell, 152 Mo. App. 
415, 133 S. W. 351 ; contra: Doran v. Thom- 
sen, 76 N. J. L. 754, 71 Atl. 296, 19 L. R. A. 
(N. S.) 335, 181 Am. St. Rep. 677. See note 
in 12 Mich. L. Rev. 153, which states that 
this doctrine appears never to have been 
recognized outside of automobile cases. 

If the relation of master and servant ex- 
ists, the law of that relation must be ap- 
pUed ; Dunks v. Grey, 3 Fed. 862; Andrus v. 
Howard, 36 Vt. 248, 84 Am. Dec. 680. No 
presumption of service or agency results 
from the relation of parent and child; Kum- 
ba V. Gilham, lOS Wis. 312, 79 N. W. 325 ; 27 
Ont. App. Rep. 468; contra, Hower v. Ul- 
rich, 156 Pa. 410, 27 Atl. 37; Gerhardt v. 
Swaty, 57 Wis. 24, 14 N. W. 851; but prob- 
ably this is" to be considered a question for 
the jury ; Adams v. Swift, 172 Mass. 521, 52 
N. E. 1068; Sacker v. Waddell, 98 Md. 43, 
56 Atl. 399, 103 Am. St. Rep. 374. The par- 
ent may be held liable if his negligence en- 
tered into the tortious act of the child; 
Johnson v. GUdden, 11 S. D. 237, 76 N. W. 
933, 74 Am. St. Rep. 795; but allowing the 
latter to use fire arms is not necessarily neg- 
ligent; Palm V. Ivorson, 117 111. App. 535; 
nor is keeping them within his reach; Hag- 
erty v. Powers, 66 Cal. 368, 5 Pac. 622, 56 
Am. Rep. 101. 

In some states, usually those where the 
civil law prevails, there are statutes making 
the parent liable for the torts of the child; 
Marionneaux v. Brugier, 35 La. Ann. 13; 
Coats V. Roberts, id. 891; Miller v. Meche, 
111 La. 143, 35 South. 491; 30 I&gt;ow. Can. 
Jur. 166. See as to parent's liability, 10 L. 
R. A. (N. S.) 933, note, and as to the liability 
of an infant for torts, see 57 L. R. A. 674, 
note. 

The father may maintain an action for the 
seduction of his daughter, or for any injury 
to the person of his child, so long as he has 
a Tight to its services ; 2 M. &amp; W. 539; Lee 
V. Hodges, 13 Graft. (Va.) 726; Bolton v. 
Miller, 6 Ind. 262; Bayles v. Burgard, 48 
111. App. 371 ; and may even be justified in 
committing a homicide in protecting his 
child ; 1 Bla. Com. 450 ; and the fact that a 
child by her father as next friend has recov- 
ered damages for a personal injury does not 
bar a subsequent action by him for loss of 
service occasioned by the same injury ; Wil- 
ton V. R. Co., 125 Mass. 130; Texas &amp; P. R. 
Co. V. Morin, 66 Tex. 225, 18 S. W. 503. The 
authorities are not uniform as to wheth-er 
the right of the father to recover for a tort 
committed against the child is to be limited 
to tlje theory of loss of service and therefore 
based entirely upon the doctrine of an im- 
plied relation of master and servant. Such 
would seem to be the English rule, which 
gives no remedy, even for expenses, when the 
child is of such tender age as to be incapable 
of service; 7 D. &amp; R. 133. Some American 
cases follow the same principle; Matthews 
V. R. Co., 26 Mo. App. 75; Whitaker t. War- 



PARENT AND CHILD 



2453 



PARENT AND CHILD 



ren, 60 N. H. 20, 49 Am. Rep. 302; but the 
trend of the authorities is otherwise, and as 
was said by the Circuit Court of Appeals, in 
a case of Injury to a child of five years of 
age, "they approve a more reasonable doe- 
trine, and, basing the right of action on the 
parental relation instead of that of master 
and servant, allow the father to recover his 
consequential loss, irrespective of the age of 
the minor;" Netherland- American Steam 
Nav. Co. V. Hollander, 8 O. 0. A. 169,' 59 Fed. 
417; Cuming v. R. Co., 109 N. T. 95, 16 N. E. 
65 ; Sykes v. Lawlor, 49 Cal. 236 ; Clark v. 
Bayer, 32 Ohio St. 299, 30 Am. Rep. 593; 
and see Seduction; Entice. 

As a general rule the mother of an ille- 
gitimate cannot recover damages for his 
death, under a statute giving a right of ac- 
tion to the relatives or representatives of 
one killed through the negligence of an- 
other; 2 Ont. 658; Marshall v. R. Co., 46 
Fed. 269. See, contra, Marshall v. R. Co., 
120 Mo. 275, 25 S. W. 179. See Bastard. 

Right to earnings of the child. Generally, 
the father is entitled to the services or earn- 
ings of his children during their minority, so 
long as they remain members of his family; 
Plummer v. Webb, 4 Mas. 380, Fed. Cas. No. 
11,233; Emery v. Kempton, 2 Gray (Mass.) 
257 ; Stovall v. Johnson, 17 Ala. 14 ; 1 Bla. 
Com. 453; Allen v. Allen, 60 Mich. 635, 27 
N. W. 702; but he may relinquish this right 
in favor of his children ; Burlingame v. Bur- 
lingame, 7 Cow. (N. T.) 92; Lyon v. Boiling, 
14 Ala. 753, 48 Am. Dec. 122 ; Bray v. Wheel- 
er, 29 Vt. 514; KaufCelt v. Moderwell, 21 Pa. 
222; and he will be presumed to have thus 
relinquished this right if he abandoned or 
neglects to support and educate his children ; 
Canovar v. Cooper, 3 Barb. (N. Y.) 115; 
Nightingale v. Withington, 15 Mass. 272, 8 
Am. Dec. 101; Clay v. Shirley, 65 N. H. 644, 
23 Atl. 521 ; Guardianship of Vance, 92 Cal. 
195, 28 Pac. 229 ; but where a father verbal- 
ly agrees that his daughter shall reside in a 
stranger's house as a servant, he does not 
thereby surrender his parental control, so as 
to bar his right to recover for her seduction ; 
Mohry v. Hoffman, 86 Pa. 358. An infant 
husband is entitled to his own wages, so far 
as necessary for the support of himself and 
family, although he married without his fa- 
ther's consent; Com. v. Graham, 157 Mass. 
73, 31 N. B. 706, 16 L. R. A. 578, 34 Am. St. 
Rep. 255. 

The emancipation of a minor may be prov- 
ed by the act of the father in allowing him 
to draw his own wages, as well as by other 
acts, and no proof of a formal contract is 
necessary; Haugh, Ketcham &amp; Co. I. W. v. 
Duncan, 2 Ind. App. 264, 28 N.E. 334. Liv- 
ing at home does not interfere with emanci- 
pation ; Wilson v. McMillan, 62 Ga. 16, 35 
Am. Rep. 115; and the wages of an infant 
emancipated by his parent, though living at 
home, are not subject to claims of father's 



creditors; Wisner v. Osborne, 64 N. J. Eq. 
614, 55 Ati. 51; Costello v. Brewing Co., 52 
N. J. Eq. 557, 30 Atl. 682 ; (if there be no 
fraud; Elfelt v. Hinch, 5 Or. 255); Atwood 
V. Holcomb, 39 Conn. 270, 12 Am. Rep. 386 ; 
Stanley v. Bank, 115 N. X. 122, 22 N. B. 29 ; 
Wambold v. Vick, 5.0 Wis. 456, 7 N. W. 438 ; 
contra, Stumbaugh v. Anderson, 46 Kan. 541, 
26 Pac. 1045, 26 Am. St. Rep. 121; Bell v. 
Hallenback, 1 Wright (Ohio) 751. 

As to his right to earnings and emancipa- 
tion, see also Benson v. Remington, 2 Mass. 
113; Atwood v. Holcomb, 39 Conn. 270, 12 
Am. Rep. 386, 2 Am. L. Reg. (N. S.) 715, 
with note by Judge Redfield; White v. 
Henry, 24 Me. 531; Aldrich v. Bennett, 63 
N. H. 415, 56 Am. Rep. 529. The father, 
as such, has no claim to any property ac- 
quired by the child other than earnings; 
Banks v. Conant, 14 Allen (Mass.) 497. 

An agreement of the father, by which 
his minor child is put out to service, ceases 
to be binding upon the child after the fa- 
ther's death, imless made by indentures of 
apprenticeship ; Campbell v. Cooper, 34 N. H. 
49; De Garnett v. Harper, 45 Mo. App. 415; 
State V. Reuff, 29 W. Va. 751, 2 S. E. 801, 6 
Am. St. Rep. 676. The power of the father 
ceases on the arrival of his children at the 
age of twenty-one ; though if after that age 
they continue to live in the father's family, 
they will not be allowed to recover for their 
services to him upon an implied promise of 
payment; Munger v. Munger, 33 N. H. 581 ; 
Guenther v. Birkicht's Adm'r, 22 Mo. 439; 
House V. House, 6 Ind. 60 ; the presumption 
being that such services are gratuitous, but 
this may be rebutted; Grant v. Grant, 109 
N. C. 710, 14 S. E. 90 ; but see Graves v. Dav- 
enport, 50 Fed. 881 ; McLaughlin v. Mc- 
Laughlin, 145 Pa. 582, 23 Atl. 400. 

A stepfather is not bound to support and 
educate his stepchildren; In re Besondy, 32 
Minn. 385, 20 N. W. 366, 50 Am. Rep. 579; 
nor is he entitled to their custody, lajjor, or 
earnings, unless he assumes the relation of 
parent ; Brush v. Blanchard, 18 111. 46 ; Wil- 
liams V. Hutchinson, 3 N. Y. 312, 53 Am. 
Dec. 301; Mull v. Walker, 100 N. C. 46, 6 
S. E. 685; Gerber v. Bauerline, 17 Or. 115, 
19 Pac. 849 ; but see Ela v. Brand, 63 N. H. 
14. 

See also Schouler; Tiffany; Reeve, Dom. 
Rel. ; Emancipation ; Kidnapping; Child ; 
Infant. 

PARENTAGE. Kindred in the direct as- 
cending Une. See 2 Bouv. Inst. n. 1955. For 
a discussion of the subject in connection 
with citizenship, see 2 Kent 49 ; Morse, Cit- 
izenship; Citizen ; Natukalization. 

PARENTELA. The sum of those persons 
who trace descent from one ancestor. 2 Poll. 
&amp; Maitl. 296. "By a person's parentela is 
meant the sum of those persons who trace 
thSir blood from him." id. 

See Line. 



PARENTS 



2454 



PARI DELICTO 



PARENTS. The lawful father and mother 
of the party spoken of. Ex parte Mason, 5 
N. G 336. 

The term parent differs from that of an- 
cestor, the latter embracing not only the fa- 
ther and mother, but every person in an 
ascending line. It difCers also from pred- 
ecessor, which is applied to corporators. 
7 Ves. Ch. 522 ; Ex parte Mason, 5 N. C. 336; 
Com. V. Oallan, 6 Binn. (Pa.) 255. See In- 
fant ; Emancipation ; Paeent and Child ; 
Pathee ; Mother. 

By the civil law, grandfathers and grand- 
mothers, and other ascendants, were, in cer- 
tain cases, considered parents. Diet, de Jw. 
Parents. See Com. v. Anderson, 1 Ashm. 
(Pa.) 55; 2 Kent 159; 5 East 223. 

PARES (Lat). A man's equals; his 
peers. 3 Bla. Com. 349. 

PARES CURI/E (Lat). In Feudal Law. 

Those vassals who were bound to attend the 
lord's court. Erskine, Inst. b. 2, tit. 3, s. 17; 
1 Washb. R. P., 5th ed. 1. See Magna 
Chabta. 

PARESIS. General paralysis of the In- 
sane. 

The term is applied to a group of mental 
and bodily symptoms, developing usually 
late in life and as a result of previous syph- 
ilis.~ The condition differs from the various 
insanities, in that definite alterations of the 
surface of the brain and its membranes are 
found, in the form of chronic inflammation. 
Loss of memory, passionate outbursts, delu- 
sions of grandeur, restlessness and insomnia, 
with final absolute dementia, are the chief 
mental symptoms, while physically muscular 
weakness, tremor, particularly of the lips 
and tongue, ataxia, and various convulsive 
seizures are seen. 

PARI DELICTO^ (Lat.). In a similar of- 
fence or crime; equal in guilt or in legal 
fault. 

A person who is in pari delicto with an- 
other differs from a particeps criminis in 
this, that the former term always includes 
the latter, but the latter does not always in- 
clude the former. S East 381. 

Ordinarily where two persons are in pari 
delicto the law will not relieve them; see 
CoNTBiBUTioN. But this doctrfue does not 
apply where a president of a national bank 
has borrowed an amount exceeding twenty 
per cent, of its capital stock and suit is 
brought to recover the amount; Ihinn v. 
O'Connor, 25 App. Div. 73, 49 N. Y. Supp. 
270. 

The rule that both parties to an ultra 
vires contract are in pari delicto, and there- 
fore a court of equity will not interpose to 
restore to one of them rights which it has 
thus parted with, is inapplicable to a mu- 
nicipal corporation whose trustees attempt 



to make an invalid grant; Detroit v. R. Co., 
56 Fed. 867. 

See In Paei Delicto. 

PARI MATERIA (Lat.). Of the same 
matter; on the same subject: as laws pari 
materia must be construed with reference 
to each other. Bacon, Abr. Statute (I 3). 

PARI PASSU (Lat.). By the same grada- 
tion. Used especially of creditors who, in 
marshalling assets, are entitled to receive 
out of the same fund without any precedence 
over each other. 

PARI PASSU BONDS. A name given in 
Scotland to certain bonds secured upon lands 
which share an equal benefit of the security. 
Where several securities are created over 
the same lands by separate bonds and dis- 
positions In security, they would ordinarily 
have priority according to the date pf regis- 
tration of the sasine or bond, as the case 
may be. If it is intended to have them rank 
as pari passu, it is usual to insert a clause 
in each bond declaring that they shall be so 
ranked without regard to their priority of 
registration. 9 Jurid. Rev. 74. 

PARIS, DECLARATION OF. See Dec- 

T.A RATION OF PAEIS ; BLOCKADE ; NeUTEALITT. 

PARISH. A district of country, of differ- 
ent extents. As used in the revised statutes, 
the word is synonymous with county; In re 
Sup'rs of Election, 28 Fed. 840; as also in 
Louisiana. 

In Ecclesiastical Law. The territory com- 
mitted to the charge of a parson, or vicar, 
or other minister. Ayl. Par. 404; 2 Bla. 
Com. 112; Hoffm. Eecl. Law. 

Althougli, in tlie absence of a state church In 
this country, the status of parishes is comparative- 
ly unimportant, yet in the Protesant Episcopal 
Church, at least, their boundaries and the rights of 
the clergy therein are quite clearly defined by 
canon. In the leading case of Stubbs and Boggs v. 
Tyng, decided in New York, in March, 1868, the de- 
fendant was found guilty of violating a canon of 
the church, in having officiated, without the per- 
mission of plaintiffs within the corporate bounds 
of the city of New Brunswick, N. J., which then 
constituted the plaintiff's parochial cure. Baum 
103. As to their origin, see 2 Hallam, Mid. Ages, c. 
7, p. 144. See, also, 1 Poll. &amp; Maitl. 560. 

In New England. Divisions of a town, 
originally territorial, but which now con- 
stitute gMOSi-corpora.tions, consisting of those 
connected with a certain church. See Wes- 
ton V. Hunt, 2 Mass. 501; Milford v. God- 
frey, 1 Pick. (Mass.) 91. Synonymous with 
church and used In the same sense as soae- 
ty. Ayres v. Weed, 16 Conn. 299. 

PARISH APPRENTICES. The children 
of parents unable to maintain them, who 
are apprenticed by the overseers of the poor 
of their parish, to such persons as may be 
willing to receive them. 2 Steph. Com. 230. 

PARISH CLERK, in Englisli Law. An of- 
ficer, in former times often in holy orders, 
and appointed to ofiidate at the altar; now 
his duty consists chiefly In making responses 



PARISH CLERK 



2455 



PARK 



in church to the minister. By CMnmon law 
he has a freehold In his office, but It seems 
now to be falling into desuetude. 2 Steph. 
Com. 11th ed. 713. 

PARISH CONSTABLE. See Constable. 

PARISH COURT. In Louisiana the local 
courts in each parish, corresponding general- 
ly to county and probate courts, and, in 
some respects, justices' courts, in other 
states were formerly so called. 

PARISH OFFICERS. Churchwardens, 
overseers, and constables. 

PARISH PRIEST. The parson; a minis- 
ter who holds a parish as a benefice. 

PARISHIONERS. Members of a parish. 
In England, for many purposes they form a 
body politic. See Paeish. 

PAR I TOR. A beadle; a summoner to the 
courts of civil law. 

PARIUM JUDICIUM (Lat. the decision of 
equals). The right of trial by one's peers: 
i. e. by jury in the case of a commoner, by 
the house of peers in the case of a peer. 

PARK (L. Lat. parous). An inclosure. 2 
Bla. Com. 38. A pound. Reg. Orig. 166; 
Cowell. An inclosed chase extending only 
over a man's own grounds. 13 Car. II. c. 
10; Manw. For. Laws ; 2 Bla. Com. 38. 

Usually smaller than a chase; Encycl. 
Laws of Engl. (Forest Laws) . 

A pleasure-ground in or near a city, set 
apart for the recreation of the public; a 
piece of ground enclosed for purposes of 
pleasure, exercise, amusement, or ornament. 
, Perrin v. R. Co., 36 N. T. 120. A place for 
the resort of the public for recreation, air, 
and light; a place open for everyone. Price 
V. Plainfield, 40 N. J. L. 613. See Archer v. 
Salinas City, 93 Cal. 43, 28 Pac. 839, 16 L. 
R. A. 145. 

Public parks may be dedicated to the pub- 
lic like highways; Abbott v. Cottage City, 
143 Mass. 521, 10 N. E. 325, 58 Am. Rep. 143 ; 
Steel V. Portland, 23 Or. 176, 31 Pac. 479; 
and at common law, upon such dedication, 
the fee remains in the owners; Attorney 
General v. Abbott, 154 Mass. 323, 28 N. E. 
346, 13 L. R. A. 251. Non-user by the pub- 
lic, however long continued, will not affect 
the public right or revest the title in the 
donor; Chase v. Oshkosh, 81 Wis. 313, 51 N. 
W. 560, 15 L. R. A. 553, 29 Am. St. Rep. 898. 
The title is usually vested in municipalities 
by the legislature; Brooklyn v. Copeland, 
106 N. Y. 496, 13 N. B. 451 ; Riggs v. Board 
of Education, 27 Mich. 262 ; Lincoln v. Bos- 
ton, 148 Mass. 580, 20 N. E. 329, 3 L. R. A. 
257, 12 Am. St. Rep. 601 ; and held by them 
in trust for the use of the public. The mu- 
nicipality cannot lease them ; Macon v. HufC, 
60 Oa. 221'; nor can the legislature; Le 
Clercq v, Gallipolis, 7 Ohio 218, pt 1, 28 Am. 
Dec. 641. 



A city may own lands for a public park 
and cause them to be improved, not in its 
public capacity as an agency of the govern- 
ment and subject to state control, but as a 
corporate Individual having private rights 
which the people have a constitutional right 
to enjoy undisturbed; Thompson v. Moran, 
44 Mich. 602, 7 N. W. 180. 

The lease of land for a public park is a 
lease for city purposes; Holder v. Yonkers, 
39 App. Div. 1, 56 N. Y. Supp. 912. Taking 
land for a park is a public use; Shoemaker 
V. U. S., 147 U. S. 282, 18 Sup. Ct. 361, 37 L. 
Ed. 170. 

The acquirement of lands for public parks 
for. children's playgrounds is within the pow- 
er of the municipal authorities ; Law v. San 
Francisco, 144 Cal. 384, 77 Pac. 1014. 

A public park may be crossed by a street 
railway where such use will not materially 
interfere with its enjoyment by the public; 
Philadelphia v. McManes, 175 Pa. 28, 34 Atl. 
331 ; and compensation may not be demanded 
for the taking; Prince v. Crocker, 166 Mass. 
347, 44 N. E. 446, 32 L. R. A. 610 ; but it is 
also held that parks dedicated to the public 
use are not subject to a right of way for a 
street railway, and that neither the munici- 
pality nor the legislature can divert them 
for that purpose; Jacksonville v. R. Co., 67 
111. 540; Booth, St. Ry. L. § 11. 

A park or public square may be enclosed, 
notwithstanding It has remained open many 
years; Corporation of Seguin v. Ireland, 58 
Tex. 183; Langley v. GaUipolis, 2 Ohio St. 
107; Guttery v. Glenn, 201 111. 275, 66 N. 
E. 305; contra, Com. v. Bowman, 3 Pa. 206, 
where it was held that a public square was 
as much a highway as though It were a 
street, and that neither the county nor the 
public could block it up, to the prejudice of 
the public or an individual. See, also, 
Springfield R. Co. v. Springfield, 85 Mo. 674. 

The city of Boston is not bound to keep 
the Boston Common in safe condition; Lin- 
coln V. Boston, 148 Mass. 580, 20 N. E. 329, 
3 L. R. A. 257, 12 Am. St. Rep. 601; Steele 
v. Boston, 128 Mass. 584; and is not liable 
for injuries caused by a horse becoming, 
while driven along an adjoining street, 
frightened by the firing of a cannon on the 
Boston Common under a license; Lincoln v. 
Boston, 148 Mass. 580, 20 N. E. 329, 3 L. R. 
A. 257, 12 Am. St. Rep. 601 ; but It must con- 
tribute to an assessment for the improvement 
of streets by which a park is hounded in 
common with private owners benefited there- 
by ; Scammon v. Chicago, 42 111. 192. 

The construction of a subway under the 
Boston Common was held no diversion of 
land deeded for a training field and cow 
pasture; Codman v. Crocker, 203 Mass. 146, 
89 N. E. 177, 25 L. R. A. (N. S.) 980. 

Running a street through a park dedicated 
by an owner to the public is unlawful ; Price 
V Thompson, 48 Mo. 361; otherwise of a 



PARK 



2456 



PARLIAMENT 



pleasure drive in a park reserved by the 
state; Com. v. Beaver Borough, 171 Pa. 542, 
'ai Atl. 112; and of a speedway; Holtz v. 
Diehl, 26 Misc. 224, 56 N. T. Supp. 841. See 
Riverside v. MaeLain, 210 111. 308, 71 N. E. 
408, 66 L. R. A. 288, 102 Am. St. Rep. 164. 

The erection of buildings in a park is un- 
lawful : As barracks ; Appeal of Meigs, 62 
I'a. 28, 1 Am. Rep. 372; school buildings; 
Board of Education v. Kansas City, 62 Kan. 
374, 63 Pac. 600 ; a jail ; Flaten v. Moorehead, 
51 Minn. 518, 53 N. W. 807, 19 L. R. A. 195. 
a city hall with a jail; Church v. Portland, 
18 Or. 73, 22 Pac. 528, 6 L. R. A. 259 ; build- 
ings ; Pessler v. Town of Union, 68 N. J. Eq. 
657, 60 Atl. 1134; a town hall; 45 L. J.Ch. 
N. S. 839; otherwise of a museum and li- 
brary ; id. ; or a building for the public ; Ross 
V. Long Branch, 73 N. J. L. 292, 63 Atl. 609. 
Monuments may be erected therein ; Hoyt v. 
Gleason, 65 Fed. 685; and water pipes may 
be laid; Howe v. Lowell, 171 Mass. 575, 51 
N. E. 536. Part of a park may be used for 
agricultural purposes; Huff v. Macon, 117 
Ga. 428, 43 S. B. 708; and trees planted; 
Guttery v. Glenn, 201 111. 275, 66 N. E. 305 ; 
Burnet v. Bagg, 67 Barb. (N. T.) 154. 

It is held that ihdividual dedications will 
be more .strictly construed than those made 
by the public; Spires v. Los Angeles, 150 
Cal. 64, 87 Pac. 1026, 11 Ann. Gas. 465 ; River- 
side V. MacLain, 210 111. 308, 71 N. E.-408, 
66 L. R. A. 288, 102 Am. St. Rep. 164. 

The title In the municipality is said to be 
held in "a kind of trust relation to the peo- 
ple"; Codman v. Crocker, 203 Mass. 146, 89 
N. E. 177, 25 L. R. A. (N. S.) 980. 

A state may commit the management of 
property turned over to it by congress to 
park commissions rather than to the munici- 
pality within whose limits it is situated; 
Kerrigan v. Poole, 131 Mich. 305, 91 N. W. 
163. Such commissioners may apportion the 
expenses of metropolitan parks among the 
towns in the park district; In re De las 
Casas, 180 Mass. 471, 62 N. E. 738. Its rules 
are valid only in so far as they are reason- 
able under the conditions existing at. the 
time they are attacked ; Whitney v. Com., 
190 Mass. 531, 77 N. B. 516. 

As to the right of the municipality to 
make regulations for the preservation of 
order in a park or public square, see Pouce 
Powee; LiBEETT OP Speech. 

See, generally, Dedication; Eminent Do- 
main; Raileoad. 

PARLE HILL (also called Parling HUl). 
A hill where courts were held in olden times. 
Cowell. 

PARLIAMENT (said to be derived from 
porter la ment, to speak the mind, or parum 
lamentum) . 

In English Law. The legislative branch of 
the government .of Great Britain, consisting 



of the house of lords and the house of com- 
mons. 

The parliament Is usually considered to consist ot 
the king, lords, and commons. See 1 Bla. Com. 
147*, 157», Chltty's note ; 2 Steph. Com., 11th ed. 341. 
In 1 Woodd. Lect. 30, the lords temporal, the lords 
spiritual, aiid the commons are called the three es- 
tates of the realm: yet the king is called a part of 
the parliament, in right of his prerogative of veto 
and the necessity of his approval to the passage of 
a bill. That the connection between the king and 
the lords temporal, the lords spiritual, and the com- 
mons, who when assembled in parliament form the 
three estates of the realm, is the same as that which 
subsists between the king, and those estates — the 
people at large — out of parliament, the king not 
being in either case a member, branch, or co-estate, 
but standing solely in the relation of sovereign or 
head. See Colton, Record 710;' Rot. Pari. vol. iii. 
623 a; 2 M. &amp; G. 457, n. Historically and properly 
speaking the absolute sovereign power in the king- 
dom is vested in the king in parliament. See Bicey, 
British Const. 141. 

The House of Lords was formerly the supretne 
court of judicature in the kingdom. It had no orig- 
inal jurisdiction (except to a certain extent before 
the reign of Charles II.), but was the court of ap- 
peal in the last resort, with a few exceptions and 
under some limitations as to the right, from the 
inferior courts upon appeal or writ of error for 
mistakes of law. Appeals lay to this tribunal from 
Scotch and Irish courts, in some cases. See stat. 
4 Geo. IV. c. 85, as to Scotch, and stat. 39 &amp; 40 
Geo, III. c. 67, att. 8, as to Irish, appeals. 

This body, when sitting as a court ot law, was 
presided over by the lord chancellor, whose attend- 
ance alone was in any respect compulsory, and was 
composed of as many of its members who had filled 
judicial stations as chose to attend. Three laymen 
also attended in rotation, but did not vote upon 
judicial matters ; 11 CI. &amp; F. 421. In the absence ot 
the chancellor, deputy speakers, who were mem- 
bers of the profession but not of the house, have 
been appointed; 3_Bla. Com. 56. 

Before Henry Ill's time the distinction between 
legislative and administrative acts was not clearly 
drawn. The need of consulting the nation before 
that time had Imposed a vague restraint upon the 
crown ; before then the manner and form of con- 
sulting It was uncertain. But the distinction began 
to grow clear in Henry III.'s reign and statutes 
passed in parliament could not be repealed without 
its consent. As yet the king's council in parliament 
assisted by the judges was then the essence of the 
parliament and made the laws; the consent of the 
commons was not indispensable. The Chief Jus- 
tices as members of the council had a real voice 
in making the laws, and the king and his justices 
might put an authoritative interpretation upon them. 
The legislative, executive and judicial authorities 
had not yet become so completely separated that 
they could not on occasion work together. In the 
following century parliament had become a body 
distinct from and even antagonistic to the council 
and the king. Enactments passed by parliament 
were the only ones that the common law courts 
would allow to be laws and the law could only tie 
changed by parliamentary action and not as for- 
merly by administrative acts. 

But the crown did not cease to possess discre- 
tionary powers ; the intervention between parlia- 
ments, the generality of the older statutes and the 
growing fixity ot the jursidiction of the common 
law courts made the existence of some such powers 
a necessity ; and in Edward I's reign they were 
often exercised by the king's council in parliament. 
But this supreme court tended to separate Into two 
bodies: Parliament, the legislative, and the council, 
the executive. And parliament as the maker ot the 
laws strengthened its connection with the common 
law courts and weakened its connection with the 
crown and council. It was for this reason that 
parliament tended to assume its common law juris- 



PARLIAMENT 



2457 



PARLIAMENT 



diction in error, wliile the council retained tlie dis- 
cretionary powers wlilcli were still left to the 
crown. 

As to the constitution of parliament there were 
the great tenants in chief, lay and executive, sum- 
moned by special writ and forming the House of 
Lords. Thus the peculiar English meaning of a 
peerage gradually was formed. All other classes of 
free tenants were represented by knights of the 
shire elected in the county court. Edward Invited 
the burghers to send elected representatives to par- 
liament and they eventually became a part of the 
House of Commons. 

Records of writs summoning knights, burgesses, 
and citiiiens to parliament are first found towards 
the end of the reign of Henry III., such writs hav- 
ing issued in the thirty-eighth and forty-ninth years 
of his reign, i Bla. Com. 425; Prynne, 4th Inst. 2. 
The earliest parliamentary roll is said to be 1290. 1 
Poll. &amp; Maitl. 178. 

Since the reign of Edward III. the history of Eng- 
land shows an almost constant increase in the 
power of parliament. Anne was the last sovereign 
who exercised the royal prerogative of veto; and, 
as this prerogative no longer practically exists, 
the authority of parliament is absolutely unrestrain- 
ed. The parliament can only meet when convened 
by the sovereign, except on the demise of the sov- 
ereign with no parliament in being, in which case 
the last parliament is to assemble; 6 Anne, c. 7. 
The sovereign has also power to prorogue and dis- 
solve the parliament. 

The origin of the English parliament seems trace- 
able to the witena-gemote of the Saxon kings. 
Encyc. Brit. A writer traces the origin back to the 
local institutions of the Germanic tribes, but con- 
siders that the final stages of its growth are to be 
sought in the period between the accession of Henry 
II. and the close of the reign of Edward I; 1 So- 
cial Bug. 396. 

The House of Lords. Besides the temporal peers 
of England, Great Britain and the United Kingdom, 
and such Scotch and Irish peers as also have im- 
perial titles, the House of Lords includes sixteen 
Scotch peers elected for each parliament by the 
body of Scotch peers ; twenty-eight Irish peers 
elected for life by the Irish peers; also the two 
English archbishops, and twenty-four of the English 
bishops. The total number of members varies, but 
may be placed at about six hundred and thirty- 
eight. 

The House of Lords exercises criminal jurisdic- 
tion, both as a court of first instance and as a 
court of criminal appeal. It tries any person im- 
peached by the' House of Commons for any high 
crime or misdemeanor; also temporal peers ana 
peeresses accused of treason, felony or misprision. 
In such case the accused cannot waive his privilege 
to be so tried. In the latter case the indictment is 
found by the grand jury and removed to the House 
of Lords (or into the Court of the Lord High Stew- 
ard, g. V.) by writ of certiorari. For the pur- 
poses of the trial the house is presided over by a 
peer as Lord High Steward appointed by the king's 
commission, or in the absence of such appointment, 
by the Lord Chancellor. The judges may be siim- 
inoned to give their opinions on any questions of 
law that may arise. All the members of the House 
of Lords are entitled to be present, and when pres- 
ent are judges of law and tact. A Lord High 
Steward, if presiding, may regulate the procedure, 
but is a judge of the law to no greater extent than 
any other peer. The bishops have a right to be 
present, but by common law may not vote in a 
capital case, and so withdraw before judgment is 
given ; 1 Odgers, Com. Law 990. For a trial be- 
fore the Court of the Lord High Steward when the 
Lords are not in session, see that title. For the last 
trial of a peer (for bigamy) see L. R. 1901, A. C. 
446. 

The House of Lords forms no part of the Supreme 
Court o£ Judicature; it has no original jurisdiction 
in ordinary civil actions. 
An appeal lies to It against any judgment or order 



of the Court of Appeal. When sitting to hear such 
appeals, it Is usually composed of the following: 
The Lord Chancellor; the ex-Lord Chancellor, if 
any, and the six Lords of Appeal in Ordinary. 
Such peers as have held high judiciWl oflice (e. g., 
the office of Lord Chancellor, of a salaried judge 
of the Judicial Committee of the Privy Council, or 
of the Supreme Court of England or Ireland, or of 
the Scotch Court of Session) are also entitled to 
sit. At least three members of the Court must be 
present. Lay peers have a right to vote, but since 
1883 no lay peer has attempted to exercise it ; his 
vote would be Ignored. 

It is a court of final appeal. This Jurisdiction is 
practically confined to civil cases, but an appeal 
lies from the Court of Criminal Appeal if the at- 
torney general certifies that the case involves a 
point of law of exceptional public importance. 

It exercises jurisdiction in cases of claims to 
peerages. It decides questions as to disputed elec- 
tions of the Scotch and Irish peers. 

See CoUKTS of England ; 17 L. Q. Rev. 155 ; 
Jenks, House of Lords. 

House of Commons. There is no property qualifi- 
cation for the House of Commons. Any male Brit- 
ish subject may be elected, unless specifically 
barred. In one or two instances natives of India 
have been elected. Infants are excluded (by common 
law and by statute), though in two notable in- 
stances. Fox and Lord John Russell, the rule has 
been disregarded. 

Peers are excluded. Including Scotch peers who 
have not been elected as representatives in the lords 
of the Scotch peerage, but an Irish peer not elected 
to represent Ireland in the lords may sit for a con- 
stituency of Great Britain, but not of Ireland. 

Clergy "of the Church of England and the Roman 
■Catholic Church and ministers of the Church of 
Scotland are ineligible. 

Government contractors, holders of certain pen- 
sions, bankrupts, and persons convicted of treason 
or a felony or guilty of corrupt practices are in- 
eligible. 

All holders of civil offices, not distinctly political, 
and the judges of the higher courts and most of 
those of the lower courts are ineligible. 

Bankruptcy and lunacy continuing for six months 
are ground for unseating a member. 

From 1715 to 1911 the life of a parliament was 
seven years. In 1911, it was changed to five years. 
See Pakliamentaey Act. Upon the demise of the 
crown, parliament is required to meet without sum- 
mons in the usual form. 

The districting of Great Britain, by the act of 1885, 
is uniform in boroughs and counties. Oxford and 
Cambridge Universities have sent representatives 
since the time of James I. Those of London and 
Dublin each have a member; Edinburgh and St. 
Andrews together have one, and Glasgow and Aber- 
deen another. In case of a tie vote at an election, 
the returning officers of an election may break the 
tie. 

By act of August, 1911, members of the House of 
Commons not receiving a salary from the govern- 
ment are paid £400 a year. 

The one fundamental dogma of English constitu- 
tional law is the absolute sovereignty or despotism 
of the parliament. Dicey, Const. 141 ; no English 
court sits as a court of appeal from parliament; 
L. R. 6 C. P. 582. 

See May, Law, Priv. and Proc. of Parliament; St. 
Armand, Legislative Power ; Bagehot, English Con- 
stitution; Pike, History of the House of Lords; 

HiCH COUET OF PABLIAMENT ; POLO-GBMOTE ; 

Witena-gemote ; Legislative Powee ; Pbees ; 
House of Loeds; Pakliamentaey Act; Clbek of 
THE Ceown. 

PARLIAMENT, CONVENTION. S6e Con- 
vention Pabt.tament. 

PARLIAMENTARY ACT. The name of an 
act of parliament of August 18, 1911, which 
recites that "it is intended to substitute for 



PARIilAMENTAKY ACT 



2458 



PAKLIAMENTART LAW 



the House of Lords as it at present exists a 
second chamber constituted on a popular 
instead of hereditary basis, but such substi- 
tution cannot immediately be brought into 
operation"; it provides that money bills, if 
sent to the House of Lords at least one 
month before the end of the session and 
not passed by it without amendment with- 
in one month, shall, upon the royal assent 
being signified, become acts of parliament. 
Public bills (other than a money bill or a 
bill extending the duration of parliament 
beyond five years), if passed by the Com- 
mons at three successive sessions, whether 
of the same parliament or not, and sent to 
the House of Lords at least one month be- 
fore the end of the session and rejected by it 
in each of these sessions, shall on their re- 
jection for the third time become acts of 
parliament, upon the royal assent being sig- 
nified thereto, but this provision shall not 
take effect unless two years have elapsed 
between the second reading in the first of 
these sessions in the Commons and the pas- 
sage of the bill in the Commons in the third 
of these sessions. The speaker of the House 
of Commons conclusively decides as to wheth- 
er a money bill is such, and whether the 
provisions as to the passage of public bills 
other than money bills, etc., have been com- 
plied with. If the House of Lords amends 
such public bills (the Commons not concur- 
ring), it is made equivalent to a rejection by 
the former. The enacting clause of bills so 
passed reads: "Be it enacted by the King's 
Most Excellent Majesty by and with the con- 
sent of the Commons." 

The duration of parliament, fixed at seven 
years in 1715, is reduced to five years. 

PARLIAMENTARY AGENTS. Persons 
professionally employed in the promotion of 
or opposition to private bills, and otherwise 
in relation to private business in parliament. 
Whart. Law Lex. Business In relation to 
private bills must be transacted through 
them, and counsel may be instructed by 
them. 2 Brett, Com. 775. 

PARLIAMENTARY COMMITTEE. A com- 
mittee of members of the house of peers, or 
of the house of commons, appointed by either 
hou